Three Dogmas of Intellectual Property Jurisprudence

Abstract

The three main positions of patent critics are reviewed. The first main view advocates for weak pharmaceutical patents so as to obtain access to cheap drugs and is advocated by the Third World. This short-term view suggests that patent thickets and an anticommons block technological progress. The second main view is articulated by patent infringers, mainly in the electronics industry, that wish to narrow patent property rules to liability rules to force patentees to license patents so as to maintain their monopoly profits. The third main view is from the open source movement that wants free software. Collectively, these three views represent the anti-patent movement.

The article delineates the theories and arguments of the three groups of patent critics and then offers critiques of each position.

The debate over patent rights has been increasingly intense in the 2000s. Patent critics have been effective at convincing courts and policy makers to change elements of patent law. The main effects of weakening patent law in the courts, in the Patent Office and in Congress are to benefit incumbents at the expense of market entrants. In the long run, a strong patent system evens the playing field and promotes scientific, technological and economic progress. The anti-patent movement therefore benefits only a few monopolists and foreign manufacturers at the expense of innovation and economic growth.