Functions and Limits of Patent Law
FACING THE LIMITS OF THE LAW, pp. 415-442, Eric Claes, Wouter Devroe and Bert Keirsbilck, eds., Springer, February 2009
16 Pages Posted: 5 Dec 2010
Date Written: February 1, 2009
Patents are a key element of our knowledge based economy. They are meant to operate as an instrument for fostering innovation by generating incentives through the grant of temporary exclusive rights.
The present paper starts by describing some major trends in patent law and practice and throws some light on the concerns to which modern patent law gives rise: extension of patentable subject matter, growing attention for patent quality, appearance of patent thickets and restrictive licensing practices, emergence of governance issues such as the North-South divide, increasing influence of “epistemic communities”, as well as an enlarged role of ethics and of human rights. Some of these trends have led to serious concerns with regard to current patent law and practice and urged competent authorities to launch a patent reform debate (Chapter 1). In aiming at a better comprehension of these trends and concerns, an analytical model has been deployed revolving around the objectives and functions of the law: the regulatory function, the symbolic function and the function to provide legal guarantees (Chapter 2). Applying this analytical model to patent law demonstrates that patent law is largely unable to fulfil its major objectives and functions within the current social and political context. The objectives and functions, for which patent law appears to be inapt highlight some limits of patent law. These limits are widely illustrated with examples from the field of biotechnology and human genetics (Chapter 3). In an effort to deal with the limits encountered, attention is paid to options for remedying problems and limits. The remedies are not necessarily to be found within the patent system and require a more holistic, outward looking perspective. Competition law, self-regulation, ethics and informal norms may play a complimentary role in the reform of the patent system in dealing with the limits encountered (Chapter 4).
The paper concludes that the trends observed and the limits encountered call for further research on the flaws and failures of today’s patent law system and for reflection on how to shape the future patent regime. If a review of the system would be restricted to controlling the symptoms (concrete problems in the day-to-day practice of the patent offices) without having diagnosed the actual ‘disorder’ (inaptitude of patent law to fulfil its objectives and functions), it may ‘steal into’ the whole system despite the availability of ‘modern treatments’ and remedies. A sound and well functioning patent system and an effective and legitimate patent law, accepted by a wide range of stakeholders (scientists, business people, and patients) and by the public at large, are of utmost importance in a knowledge based economy.
Keywords: Patent law, Objectives, Goals, Justification, Limits, Regulatory function, Symbolic function, Expansion patentable subject matter, Patent quality, Patent thickets, Restrictive licensing, Globalisation, Experts, Epistemic communities, Governance, Accountability, Ethics, Human rights, TRIPs, WIPO, WTO
JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L4, L 65, O13, O31, O32, O34,
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