scholarly journals The Surprising Resilience of the Patent System

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Legal Doctrine ◽  
Legislative Reform ◽  
System P ◽  
Patent Rights ◽  
Legal Challenges ◽  
New Business ◽  
Patent Applications

The patent system seems in the midst of truly dramatic change. The lasttwenty years have seen the rise of a new business model – the patent troll– that grew to become a majority of all patent lawsuits. They have seen asignificant expansion in the number of patents granted and a fundamentalchange in the industries in which those patents are filed. They have seenthe passage of the most important legislative reform in the last sixtyyears, a law that reoriented legal challenges to patents away from courtsand toward the Patent and Trademark Office (PTO). And they have seenremarkable changes in nearly every important legal doctrine, from patenteligibility to obviousness to infringement to remedies.These changes have prompted alarm in a number of quarters. From the 1990sto the 2000s, as the number of patents and patent troll suits skyrocketed,technology companies and academics worried about the “crisis” in the patentsystem – a crisis of overprotection that might interfere with rather thanpromote innovation. By 2015, as patent reform took effect and the SupremeCourt undid many of the Federal Circuit’s expansions of patent rights, itwas patent owners who were speaking of a crisis in the patent system – acrisis of underprotection that might leave innovators without adequateprotection. Depending on one’s perspective, then, the sky seems to havebeen falling on the patent system for some time.Despite the undeniable significance of these changes in both directions,something curious has happened to the fundamental characteristics of thepatent ecosystem during this period: very little. Whether we look at thenumber of patent applications filed, the number of patents issued, thenumber of lawsuits filed, the patentee win rate in those lawsuits, or themarket for patent licenses, the data show very little evidence that patentowners and challengers are behaving differently because of changes in thelaw. The patent system, then, seems surprisingly resilient to changes inthe law. This is a puzzle. In this article, I document this phenomenon andgive some thought to why the fundamental characteristics of the patentsystem seem resistant to even major changes in patent law and procedure.The results pose some profound questions not only for efforts at patentreform but for the role of the patent system in society as a whole.

Constructing an Objective History of the U.S. Patent System

2020 ◽  
pp. 65-88
Author(s):  
Jonathan M. Barnett
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Antitrust Law ◽  
Historical Trends ◽  
Qualitative Evidence ◽  
System P ◽  
Injunctive Relief ◽  
History Of ◽  
Patent Applications ◽  
The U.S

This chapter presents a history of the U.S. patent system based on quantitative and qualitative evidence relating to patentees’ expectations that courts will uphold the validity of contested patents, find infringement, and award injunctive relief against infringing parties. Additionally, this chapter describes historical changes in antitrust law that have impacted patentees’ ability to enter into licensing and other patent-dependent transactions. Based on these features of patent law and antitrust-related patent law, supplemented by background institutional developments, the history of the U.S. patent system during 1890–2006 consists of three periods: (i) a strong-patent, weak-antitrust period from 1890 through the mid-1930s; (ii) a weak-patent, strong-antitrust period from the late 1930s through the 1970s; and (iii) a strong-patent, weak-antitrust period from the early 1980s through 2006. Historical trends in the volume of patent applications by U.S. inventors are consistent with this division of U.S. patent history.

14. Key elements of the patent system

2020 ◽  
pp. 230-245
Author(s):  
Ian J. Lloyd
Keyword(s):  
Patent Protection ◽  
World Trade Organisation ◽  
Patent System ◽  
The European Union ◽  
The United Kingdom ◽  
System P ◽  
To Come ◽  
The Uk ◽  
Near Future

This chapter considers the nature and manner of operation of the patent system. Patents date back to around the 14th century. For the United Kingdom they began as a means to encourage the importation of foreign skills and technology, fell into disrepute as they were used by monarchs to confer monopolies in respect of the sale of well-known objects such as playing cards and eventually from the late seventeenth century settled into their present role of granting temporary monopolies to those who make inventions. The chapter examines the criteria that will be applied in determining whether an invention is eligible for patent protection and the procedures that will required to be followed in order to obtain this. Unlike copyright which applies effectively on a global basis, the patent system has operated on a national basis. A UK patent will be valid and enforceable in the UK but nowhere else. There are international agreements, however, designed to simplify the task of obtaining protection in a range of countries and the operation of these will be considered as well as the treatment of intellectual property within the General Agreement on Trade in Services and the World Trade Organisation. Within the European Union, the possible introduction of a unitary patent has been the subject of discussion for many years and appears likely to come to fruition in the near future although the involvement of the UK post Brexit is uncertain.

Property Rights and Patent Litigation in Early Nineteenth-Century America

1995 ◽  
Vol 55 (1) ◽  
pp. 58-97 ◽  
Author(s):  
B. Zorina Khan
Keyword(s):  
Property Rights ◽  
The United States ◽  
Patent System ◽  
Expected Returns ◽  
Alexis De Tocqueville ◽  
Early America ◽  
Nineteenth Century America ◽  
Patent Rights ◽  
Inventive Activity

Economic development depends on the establishment of appropriate institutions, such as a patent system that defends property rights in inventions. Skeptics argue that patents in early America were unenforceable because judges arbitrarily ruled against patentees. I examine 795 patent cases to assess the role of the courts and find that judges protected patent rights because they believed that inventors were motivated by expected returns. Although changes occurred in the 1850s, the courts consistently upheld the view that the patent system fostered economic growth. If inventive activity indeed responded to material incentives, this finding implies that the legal system stimulated technical change by reinforcing the effectiveness of the patent system.The laws of the United States are extremely favorable to the division of property.—Alexis de Tocqueville, Democracy in America

PARLIAMENTARY REWARDS AND THE EVOLUTION OF THE PATENT SYSTEM

2015 ◽  
Vol 74 (3) ◽  
pp. 423-449 ◽  
Author(s):  
Robert Burrell ◽  
Catherine Kelly
Keyword(s):  
Reward System ◽  
Patent Law ◽  
The State ◽  
Patent System ◽  
Public Disclosure ◽  
Minimum Requirement ◽  
The Core ◽  
The Impact ◽  
Special Provision

AbstractThis article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way, the reward system helped establish the framework under which the state would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way, the reward system recognised the contribution of the “heroic inventor”, whilst leaving the core of the patent system undisturbed.

scholarly journals Consumer Protection in the Digital Economy and Its Legal Challenges

2021 ◽  
Vol 11 (2) ◽  
pp. 686-700
Author(s):  
Phan Thi Thanh Thuy ◽  
-- --
Keyword(s):  
Business Models ◽  
Legal Framework ◽  
Digital Economy ◽  
Economic Effects ◽  
Economic Relationships ◽  
Legal Challenges ◽  
New Business ◽  
Legitimate Interests ◽  
The Right

The 21st century is the era of the digital economy and technological achievements. Digital business models have created unprecedented socio-economic relationships and quickly dominated the market share of traditional business models in the same industry. These new business models are praised for their economic effects. On the contrary, they are criticized as the parties involved and the relationships created seems to be moving away from the norms determined by applicable business laws. Facing with the digital economy and its business models, many governments are confused because they have not found yet the right way to adjust them. Regarding the relationships between the parties of digital business model, how to protect legitimate interests of consumers is one of the most essential legal issues that has attracted widespread attention. To answer this question, the article will examine and analyze the legal role of consumers in the relationship with other parties, thereby finding out the legal challenges and giving suggestions on building a legal framework to protect consumers in the digital economy.

The New Patent Regime

2017 ◽  
Author(s):  
Murphy Halliburton
Keyword(s):  
Low Cost ◽  
Standard Of Care ◽  
Patent Law ◽  
New Drugs ◽  
Essential Medicines ◽  
System P ◽  
Patent Laws ◽  
Patent Applications ◽  
Indian Supreme Court ◽  
Silver Lining

This chapter examines efforts to resist the implementation of the new patent regime in India out of concern for the price of essential medicines. The Indian pharmaceutical sector has been a principle source of low cost medicines for developing countries, but may no longer be able to produce inexpensive copies of medications patented elsewhere. India’s WTO-compliant patent law has a silver lining, however, since it requires companies to demonstrate increased effectiveness of new drugs over the standard of care, provisions against “evergreening” of patents that are not required by US patent laws. Activists in India have been able to defeat several recent patent applications under this provision. The pharmaceutical giant Novartis challenged this provision in the Indian Supreme Court while at the same time the company was holding patents for medical products that were derived from India’s indigenous ayurvedic medical system.

Paternal-Fetal Conflict: An Examination of Paternal Responsibilities to the Fetus

1994 ◽  
Vol 13 (1) ◽  
pp. 63-75 ◽  
Author(s):  
Joseph Losco ◽  
Mark Shublak
Keyword(s):  
Pregnant Women ◽  
Newborn Health ◽  
Well Being ◽  
Press Coverage ◽  
Legal Doctrine ◽  
Female Behavior ◽  
Fetal Health ◽  
Legal Challenges ◽  
Health And Well Being

Virtually all of the literature regarding liability for fetal health and well-being has concentrated on female behavior. Prosecution of women for “fetal abuse or neglect” has received widespread popular press coverage. Far less attention has been paid to the role of males in contributing to the health and welfare of newborns. This paper redresses this lack of attention by reviewing the ways in which males contribute to newborn health and by examining legal doctrine to determine if the same legal challenges that have been advanced against pregnant women are applicable to males as well. Questions are raised regarding the consequences of prosecuting males for their role in contributing to fetal harm.

scholarly journals The Uneasy Case for Patent Law

2018 ◽  
pp. 499
Author(s):  
Rachel Sachs
Keyword(s):  
Patent Protection ◽  
Human Microbiome ◽  
Patent Law ◽  
New Drugs ◽  
Patent Rights ◽  
Central Tenet ◽  
Microbiome Research ◽  
Innovation Incentives

A central tenet of patent law scholarship holds that if any scientific field truly needs patents to stimulate progress, it is pharmaceuticals. Patents are thought to be critical in encouraging pharmaceutical companies to develop and commercialize new therapies, due to the high costs of researching diseases, developing treatments, and bringing drugs through the complex, expensive approval process. Scholars and policymakers often point to patent law’s apparent success in the pharmaceutical industry to justify broader calls for more expansive patent rights. This Article challenges this conventional wisdom about the centrality of patents to drug development by presenting a case study of the role of patents in the emerging field of microbiome research. Scientists have recently begun to appreciate the important role played by the human microbiome, the community of microbes that lives within each of our bodies, in preventing and treating disease. The microbiome has been linked to autoimmune disorders, mental health conditions, and a range of conditions affecting our intestinal systems. Put simply, research involving the microbiome has the potential to change the future of medicine. There’s just one problem: the microbiome can’t meaningfully be patented. Several doctrines within patent law will make it extremely difficult for companies to obtain and enforce patents like the ones that are so readily available in most areas of medicine. Drawing on patent doctrine, patent searches, and interviews with scientists and lawyers, this Article demonstrates that companies are developing microbiome-based therapies largely in the absence of patent protection. Instead, the companies are relying on other innovation incentives to fill the gap. The microbiome’s unpatentability presents an opportunity to evaluate whether patents are truly necessary for the development of new drugs. Congress, the NIH, and the FDA have implemented many innovation incentives throughout the development process, and we should not be astonished that removing a single such incentive, patent law, does not disrupt the entire system. Perhaps scholars should reconsider, if only selectively, our focus on patents as an irreplaceable driver of pharmaceutical innovation.

Recent Landmark Changes in Japanese Biotechnology & University Patenting (Part I)

2006 ◽  
Vol 3 (3) ◽  
Author(s):  
John A Tessensohn ◽  
Shusaku Yamamoto
Keyword(s):  
Patent Law ◽  
Policy Reforms ◽  
Japanese Patent ◽  
Grace Period ◽  
Policy Environments ◽  
Patent Rights ◽  
Academic Researchers ◽  
Patent Applications ◽  
Biotechnology Sector ◽  
Filing Patent

AbstractThis article will discuss the recent landmark policy reforms to Japan's university, intellectual property, science & technology, and biotechnology policy environments which seek to jump-start Japan's underperforming biotechnology sector by encouraging Japanese universities to patent and transfer the fruits of their research to industry or venture startups. If academic researchers at Japanese universities publish their research prior to filing patent applications, in view of their unfamiliarity with patent law, such publications will not destroy all Japanese patent rights in view of Japan's novelty grace period and the designation of several universities to enjoy such grace period benefits. The article concludes that these landmark changes could serve to positively transform Japan's biotechnology sector.

Digitalized Invention, Decentralized Patent System

2021 ◽  
pp. 120-144
Author(s):  
Feroz Ali
Keyword(s):  
Artificial Intelligence ◽  
New Technologies ◽  
Digital Photography ◽  
Patent Law ◽  
Patent System ◽  
Patent Office ◽  
Working Models ◽  
System P ◽  
History Of

Throughout the history of patent law, the manner of representation of invention influenced the process of the patent office in prosecuting them. This chapter traces how changes in the representation of the invention—from material to textual to digital—transformed patent prosecution. Early inventions were represented by working models, the materialized invention that needed little or no examination by the patent office, as they were the inventions themselves. Substantive examination became necessary when the representation of the invention shifted from material to textual, the point in history where the invention became textualized and represented by the patent specification, the written document that encompassed the invention. The textualized invention, apart from effecting critical changes in patent prosecution, centralized the operations of the patent office. With the adoption of new technologies like blockchain and artificial intelligence (AI), the manner of representation of invention will undergo yet another change resulting in the further evolution of patent prosecution. Like digital photography which changed the representation of images by radically changing the backend process, the digitalized invention will change the backend process of the patent office, ie, patent prosecution. The most significant systemic consequence of the digitalization of the invention will be the decentralization of patent system.

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