Patents are a powerful monopoly with International reach.
That means they can be very helpful in promoting innovation, but they can also
cause problems and controversy. We list below topical problems relating to
patents. This post does not aim to discuss each topic in detail, instead giving
links to further information for those who are interested.
1. Access to medicines
Patents in the developing world cause drugs to be
unaffordable for the poorest. It’s an issue still in need of resolving. See our
IPKat post about it here.
2. TRIPS issues
The TRIPS agreement is not assisting technology transfer to
the developing world as it was meant to, and arguably is hindering development
in certain countries. We briefly discuss articles that suggest changing TRIPS here.
3. Patent trolls
This is a well-known problem in the US hi-tech sector with
daily developments (see for example here).
The US is responding with many legislative initiatives and the recent US
Supreme Court ruling Alice v CLS Bank will also help (see our post on this
decision here).
4. Is the present patent system appropriate for the
developing world?
In many developing countries far more patent applications
are filed by foreign companies than domestic companies. In this situation
perhaps we need to rethink IP rights so that national interests are better
served. See a Guardian article on this issue here.
5. Bioprospecting
Who owns natural resources and should patents be allowed to
hinder their exploitation? A recent
article in the Queen Mary Journal of Intellectual Property illustrates these
issues very well in the context of marine genetic resources (see here).
6. Specialist IP courts
Can specialist IP courts develop biases towards patentees?
This accusation is sometimes directed at the US Federal Circuit (see here).
See our post on specialist courts here.
7. Patenting nature or ‘building blocks’
The US Supreme Court decisions Mayo, Myriad and Alice are
based on the principle that nature, natural law and abstract ideas cannot be
patented. Essentially the ‘building blocks’ of innovation must be free for all
to use. Decades of US case law no longer applies and patents will be more
difficult to obtain in the biotech, pharma, chemical and software fields. See
our post on the post-Alice post-Myriad post-Mayo world here.
8. Unfair trade agreements
What norms are needed to ensure that trade agreements that
refer to IP are fair? This is a difficult issue when negotiations happen
between parties of different powers, but clearly relevant to TRIPS and the
present discussion on the Trans-Pacific Partnership (TPP) and the
Trans-Atlantic Trade and Investment Partnership (TTIP). The Max Planck
Institute is trying to formulate appropriate norms. See our post on their
Declaration on Patent Protection here.
See our post on the TPP here.
9. Evergreening
Evergreening is the use of patent protection on subsequent
developments to extend protection for pharmaceutical products. Certain
territories, like India, have legislation to specifically prevent this. See a
paper on evergreening here.
10. Dominant patents inhibiting subsequent developments
