Dynamic Patent Governance in Europe and the United States: The Myriad Example
Kali N. Murray
Marquette University - Law School
Esther Van Zimmeren
University of Leuven
April 18, 2011
Cardozo Journal of International and Comparative Law (JICL), Vol. 19, p. 287, 2011
Marquette Law School Legal Studies Paper No. 11-21
This Article examines the emerging elements of a new model for patent governance. It is divided into four parts. In Section One, we develop a model of dynamic patent governance. This model extends the theoretical framework of network governance, to explain the emergence of networks in the decisionmaking infrastructure for the public and private actors in the patent system. Dynamic patent governance widens this theoretical framework in two key ways. First, dynamic patent governance, within its formal dimensions, is based on the idea that heterogeneous administrative actors regulate the grant and enforcement of patents. This challenges a perspective that sees patent examination agencies as the sole actor of importance within the patent system. Second, dynamic patent governance, within its informal dimensions, highlights that the patent administrative regime is shaped by the fluid relationship of diverse actors to these heterogeneous administrative actors. Section Two explores the consequences of a more dynamic patent governance context. Section Three applies this model to explore the recent Myriad litigation in the United States and Europe. Section Four focuses on some particular challenges that dynamic patent governance poses to: (1) the impulse to centralize patent administration and litigation; and (2) the efficiency of the patent system.
Number of Pages in PDF File: 57
Keywords: dynamic patent governance, intellectual property, Myriad Genetics
Date posted: September 19, 2011
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