The Changing Function of Patents: A Reversion to Privileges?

Legal Studies, Forthcoming

Posted: 16 Oct 2017

See all articles by Jessica C. Lai

Jessica C. Lai

Victoria University of Wellington

Date Written: 2017


Since its inception, patent law has had many faces, manifesting different aims and functions. The latest recalibrations of the aims and functions of patent law are striking because – at its core – patent law itself has not changed significantly in this time. This paper examines the chameleon-like nature of the function of patents, tracking historical transformations from the privilege as an instrument of trade policy, to patents as an incentive/reward to invent and disclose the invention, and the most recent shift towards viewing patents as necessary for innovation. In particular, the paper addresses whether the latest shift represents a reversion to privilege-like functions, due to the analogous focus on commercialisation, and argues that this is not the case because of the fundamental move to focusing on patentees rather than society as a whole and to seeing patents as property.

Keywords: patent law, property theory, patent function, privileges

JEL Classification: K11, K39

Suggested Citation

Lai, Jessica C., The Changing Function of Patents: A Reversion to Privileges? (2017). Legal Studies, Forthcoming, Available at SSRN:

Jessica C. Lai (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
New Zealand

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