These are all great points. But I have to say I don’t agree that the question is whether patents are required for the formation of a corporation because that excludes a lot of R&D that might be done by an existing corporation. Maybe the best way to put it is whether it increases the share of R&D invested in science and technology. These are all so tricky to measure; “invention” is abstract, but R&D includes, for example, buying servers.
For what it’s worth, I don’t think that the evidence of multiple inventions is devastating for capital formation around inventions. The question is whether it increases invention overall, for example in helping companies attract financing or just providing more capital (for example, through licensing) to do other things. The evidence there is in favor of patents, but of course, to some extent capital formation bleeds into technology diffusion. For example, some of the papers I talk about show how patents help startups attract VC, get higher sales, and get exits more often. Is that evidence of attracting capital, or is that a longitudinal piece of evidence that the technology got more widely diffused? And how does that relate to the counter-factual of whether this increased the amount of invention? To me it’s clear that inventors invent because that’s who they are. Patents would help facilitate invention by helping inventors attract more resources to invent in the first place. (The result could be negative if the blocking rights become too severe of course!)
One last thing, I completely agree with you on the difference between NPEs and PAEs. On top of universities et al, I’d also add R&D companies that monetize through patent licensing, like ARM.
Digital IP is kind of interesting because IP is a creature of Congress. It isn’t like real property where there is a common law basis for it exactly (though many parts of the doctrine come from common law, like fair use). So basically it is up to Congress to determine what the right social mix is. With digital IP clearly there are some things that should remain IP and that doesn’t change just because the form changes (like stealing a movie) but there are aspects where the ease of replication may cause us to want to change the balance of some of these rights. It comes up more in copyright than in patents. (Larry Lessig has a great talk on “remix culture” and the ways in which laws might evolve to accommodate new art forms.) Thanks for reading!