Patents and standardization, part 1: A tutorial on patents (original) (raw)

Patent Systems as Regulatory Institutions

National patent systems and the international patent rules have evolved in ways that favour transnational corporations and other firms that claim to need patents in order to innovate. The possibility that at least some of the rule changes have been made at the expense of less powerful actors including consumers and developing countries makes it timely to ask such questions as: Why were the changes made in the first place? Why have most attempts to reverse them failed? Has the patent system always been vulnerable to regulatory capture? And is it necessarily the case that if there are winners there must always be losers? This article adopts a case study approach to argue that the search for plausible answers should begin by treating patent systems for analytical purposes as economic institutions whose evolution cannot in most cases adequately be explained in terms of the objective, well-informed and public spirited calculus of judges and policy makers. In doing so, it also suggests that the patent system itself has been fundamentally shaped from a very early stage by interest group pressure. On the other hand, such interest group pressure may not be decisive in determining outcomes, and may not even be present in all cases. Indeed, even in the apparent absence of commercial interest group pressure, institutionalism can probably explain most if not all of the reforms made. Finally, while a reform may substantially benefit one interest group and have considerable implications for the interests of many other people, patent regulation should not be perceived as a zero-sum game.

Patent systems for encouraging innovation: Lessons from economic analysis

Research Policy, 2006

Economic theory views patents as policy instruments aimed at fostering innovation and diffusion. Three major implications are drawn regarding current policy debates. First, patents may not be the most effective means of protection for inventors to recover R&D investments when imitation is costly and first mover advantages are important. Second, patentability requirements, such as novelty or non-obviousness, should be sufficiently stringent to avoid the grant of patents for inventions with low social value that increase the social cost of the patent system. Third, the trade-off between the patent policy instruments of length and breadth could be used to provide sufficient incentives to inventions with high social value. Beyond these three implications, economic theory also pleads for a mechanism design approach to the patent system, where an optimal patent system could be based on a menu of different degrees of patent protection with stronger protection corresponding to higher fees.

The Patent System at a Crossroads

University of Southern California Center for Law & Social Science (CLASS) Research Paper Series, 2018

Judicial decisions, agency actions and legislative enactments have promoted a creeping reversion toward the weak patent regime that prevailed for several decades preceding the establishment of the Court of Appeals for the Federal Circuit. The pending Supreme Court case, Oil States Energy Services v. Greene’s Energy Group, provides an opportunity to reflect upon the choice between a “property rights�? vision of the patent system in which resource allocation is principally directed by market signals and an administrative vision of the patent system in which resource allocation is perpetually subject to adjustment by courts and regulators. A growing body of empirical research raises doubts concerning the social costs that have been attributed to a robustly enforced patent system and, by implication, poses a challenge to policy actions that have targeted property-like attributes of that system.

Declared essential patents : the US patent system in an international perspective

2016

Firms often collaborate to produce inter-operability standards so that independently designed products can work together. When this process takes place in a Standard Setting Organization (SSO), participants are typically required to disclose any intellectual property rights (IP) that would be infringed by a proposed standard, and asked for a commitment to license their essential IP on fair, reasonable and non-discriminatory terms. This paper describes the IP disclosure process, and provides an overview of a publicly available IP disclosure dataset that the authors have compiled using the archives of thirteen major SSOs. We use these new data to illustrate several major trends in standards development, and to show how “declared essential” patents di↵er from randomly matched patents from the same vintage and technology classes. Declared essential patents receive more citations and are much more likely to be litigated than a typical patent from the same technology class. However, these...

The Case for Registering Patents and the Law and Economics of Present Patent-Obtaining Rules

SSRN Electronic Journal, 2004

Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to More scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as primarily operating to minimize social cost, and that accounts for otherwise puzzling aspects of the patent system. This "registration" theory for patent-obtaining rules is a companion to the "commercialization" theory for .patent-enforcing rules by the same author. This Article shows how these theories together offer a more coherent view of the patent system than the "reward," "prospect," and "rent dissipation" theories. This Article further identifies those patentability rules that are essential and those that should be reformed, while revealing inherent registration aspects of our present system and reasons for eschewing reforms presented elsewhere.

Carrots and Sticks to Create a Better Patent System

SSRN Electronic Journal, 2002

It is widely recognized that the Patent Office grants overly-broad patents because it has deficient knowledge of the relevant prior art, especially in high technology areas with significant nonpatent prior art.