Are we seeing the end of the patent?

AN academic paper I stumbled upon recently posed a fascinating question which I had never really given much thought to: what if the theory justifying the patent system is deeply flawed?

AN academic paper I stumbled upon recently posed a fascinating question which I had never really given much thought to: what if the theory justifying the patent system is deeply flawed?

The main theory underpinning patents and intellectual property is that it encourages innovation. If you can create something capable of being patented, and the law gives you full power over its use and profit, then it creates an environment of sufficient incentive.

It could be seen as one of the crowning glories of capitalism. You could certainly argue that it shows its’ flexibility by making private ownership a very wide concept.

The state gives you power over your creation or invention. Once this is defended effectively, others are encouraged to pursue the same methods. In the long-run, if the rewards are substantial enough, innovation is accelerated. Of course you could argue that it’s not just the promotion of innovation that underpins patent theory.

If you create or design something which is patentable, then in principle that should belong to you, to use as you see fit.

However the academic paper in question challenged many of these basic theories, mainly as a reflection of the changing commercial landscape of the globe.

For one, there is a challenge to the somewhat adversarial nature of intellectual property law. These laws frequently prioritize innovation from a single source- an individual or a company.

However as the paper argues, quite frequently innovation is a result of a joint effort between companies in a problem-solving mode.

If the companies are in a similar field and therefore have similar problems, they can join forces to design or invent something that can be of mutual benefit to both parties.

Profit is not the overriding factor here (although it is still obviously very important) and collaboration rather than secretive development is the key.

One would think that the marketplace is usually the kind of Darwinian environment that makes cooperation tricky. Nevertheless, the authors argue that this has become common enough to be an emerging factor.

In fact, numerous studies appear to show that companies share information and ideas with each other a lot more than was previously thought.

Technological progress has made this a more common feature of the marketplace, and this in turn creates a situation where the innovation paradigm is changing in different ways.

Tied in to the above point is another concept that the authors contend has outlived its usefulness: the weight given to the initial point of origin of the invention.

Intellectual Property Law assumes that the initial act of invention is the crucial point, but the paper argues that this ignores all the other incremental innovations built on that point.

The paper contends that this gives a distorted picture of what actually happens in reality, and presumably skews legislation in that direction. Obviously the extent of firm collaboration varies between Countries at the moment, but it does not seem particularly fanciful to suggest that even in the developing world, the free market is moving closer to that model.

This all raises several questions. One of which is; is the marketplace a lot more cooperative than many people assume? How does this reflect on intellectual property law? Should the initial point of innovation always be the marker for patent invention?

The paper goes as far as to suggest that granting monopoly rights to create incentives for innovation has not been completely effective, and is becoming more and more obsolete.

It would be interesting to see how things will develop in the decades to come, but it is worth considering how collaboration in the private sector should be reflected in relevant legislation.

Minega Isibo is a lawyer


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