Private Law and the Future of Patents
21 Pages Posted: 17 Feb 2017
Date Written: February 17, 2017
As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is an alternative. Patent theory can be adjusted instead. This article points to an emerging innovation-focused basis for patent law that is explicitly private law. Not only does that lead to consistency, the change also offers a desperately needed promise of private law. Private law institutions offer the potential for extremely low administration costs. Private law institutions function smoothly without the need of chronic, expensive judicial intervention. Today the litigation related costs of the patent system threaten to capsize the whole patent system. Private law offers a promising, needed alternative.
Keywords: H.L.A. Hart, internal point of view, innovation, markets, private law, patent
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