People paying the costs of antisocial innovation aren’t the same ones paying the price of the product
Buccafusco, Christopher and Weinstein, Samuel N., 2024 - Christopher Buccafusco is the Edward & Ellen Schwarzman Distinguished Professor at Duke University School of Law. Samuel N. Weinstein is a Professor and Co-Director of the Heyman Center on Corporate Governance at the Benjamin N. Cardozo School of Law, Yeshiva University "Antisocial Innovation," Georgia Law Review: Vol. 58: No. 2, Article 4. Available at: https://digitalcommons.law.uga.edu/glr/vol58/iss2/4 //DH
396 In theory, patents on harmful innovations could end up being prosocial to the extent that patents make those products more expensive, meaning that they get into the hands of fewer people. This would be, in effect, a “deadweight gain.” Crane has made a similar argument about anticompetitive effects in the tobacco industry. See Crane, supra note 369, at 362 (“[A]nticompetitive behavior would [not necessarily] increase net social welfare if it decreased cigarette consumption.”). We are skeptical that many or any such gains exist. If the occur for addictive products like cigarettes, then people may still pay the added cost of the patent-protected product. In other cases, the parties who are paying the added costs of patent protection are unlikely to be the ones harmed by the product. For example, a firm may be willing to pay for a patented product that allows it to surveil its employees, but the
employees’ harms are externalities to the exchange. It will be the rare instance, we think, that the patent “tax” on the product operates as a sin tax that reduces consumption.