Patents are important, complex and bring up controversial
issues that affect many people. This post briefly examines some of the issues
around patents that would be of interest to people in other sectors.
1. Language and claim construction
Much has been written about how to interpret claims, and
claim construction is often pivotal to the outcome of litigation particularly in
the US. Indefiniteness was the subject of a recent US Supreme Court decision
Nautilus (see here). Clearly
there is an inherent uncertainty in language which will always be there. In
addition in certain territories the claims are also the basis of a doctrine of
equivalents or ‘purposive’ construction.
2. Morality of Biotech Inventions
In Europe the Biotech Directive (see here)
has given guidance on biotech inventions which are considered unpatentable for
morality reasons. Subsequently the Brustle decision tackled the patentability
of embryo stem cells (see here).
Whether or not one agrees with these it is a platform to discuss and formulate
a ‘European’ view of morality. That can then feed into discussions such as these.
3. Post-Structuralism
Patents are complicated and take place in the context of
human systems. That means we must be aware of the limits in understanding them
to the extent imposed by ‘post-structuralism’, i.e. there may not be an
underlying ‘structure’ or ‘right answer’ in a situation. That means for any
given situation it may not be possible to achieve complete certainty to ‘is
this claim scope patentable?’ or ‘how much is this patent worth?’.
4. Patents and Economics
How do patents affect innovation? Generally of course
patents are judged to be good incentives for promoting innovation (see here).
However the situation is complex and there is evidence that patents inhibit the
subsequent development of an invention by other parties (see here). Clearly the
answers to these questions will also vary from country to country (see here).
5. International Relations
Each nation has agreed to respect other nation’s patent
rights. However there have been accusations that this can lead to a sort of
neo-colonialism (see here).
Clearly this is a complex issue, but the power of IP monopolies means they can
conflict with national interests. However harmonisation of IP laws has also
demonstrated the power of countries to work together and to develop joint
institutions such as the European Patent Office.
6. Ways of Doing Research: Open Innovation
The traditional way of doing research and then patenting is
being challenged by the rise of open innovation and collaborative models of
research. This leads to the question of how the patent system should respond
(e.g. for defensive patent licencing see here),
and whether in fact it is time to get rid of it altogether (see here).
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