Abstract
This Article builds on the growing body of work examining how state action can promote technological innovation through intellectual property interventions beyond models in which the state plays a minimal role. In both the traditional model of private intellectual property rights and the copyleft alternative of the intellectual property commons, the state is conceived of as having minimal potential to actively contribute to innovation. This has limited the legal imagination for state-based alternatives that could promote development in many technological fields, particularly those that are more capital-intensive. Case studies illustrating a more “capable state” vis-à-vis intellectual property are thus needed to explore new conceptual issues in intellectual property theory and new practical possibilities for industrial policy. This Article offers one such case study in a recent federal innovation program in the United States, “Manufacturing USA,” which aims to catalyze technological development in advanced manufacturing. The program is comprised of fourteen “Innovation Institutes,” each assigned a unique area of technological focus, and each given the freedom to develop an approach to intellectual property and knowledge sharing that best suits their focus area. Across the various strategies employed by these institutes, three different forms of state action vis-à-vis intellectual property can be observed: (1) the creation of intellectual property commons; (2) the production of industry-wide technical platforms that can spur further innovation; and (3) the direct coordination of firms into joint research ventures in which intellectual property and know-how are shared. Institutes have generally prioritized either platform-production or coordination, and which of these they choose appears to depend largely on the technological characteristics of their manufacturing subfields. While both the commons and platform models have been previously discussed in the IP literature, the coordination-based role for the state is novel. This Article examines the theoretical basis for this form of state intervention, drawing from work on industrial policy and innovation theory, and concludes by discussing some of the normative challenges that it raises.