Patent law:the right to exclude others or simply the right to copy from others?


A patent consists of a set of exclusive rights granted by a sovereign state to an inventor for a limited period of time, usually 20 years in the United States in exchange for the public disclosure of an invention. But is that public disclosure really give the inventor to take full advantage of his intellectual property?

For instance, the inventor of the steam engine, James Watt once laments “that in life there is nothing more foolish than inventing, here I work five or more years contriving an engine, and Mr. Moore hears of it, is more evil, gets three patents at once, publishes himself in the newspapers, hires 2,000 men, sets them to work for the whole world in St. George’s Fields, gets a fortune at once, and prosecutes me for using my own inventions.” [1]

It was only recently that Apple and Samsung went to court for claims that Samsung new smartphones infringed Apple’s patents. And the result_ Apple would retrieve $1b for the infringement that was only 1.5% of the total revenue of Samsung.

If the patent law does not effectively exclude others (especially those who have opulent financial resources to tap into the promises of a great invention and get away with light financial punishment), is it still a fair distribution of entitlement in the technological society? Is an inventor far better off creating something in a lab secretly without spending a hefty chunk of his financial resources to file a patent?

In addition, is 20 years really a fair period of time, considering some technologies takes years to materialize an idea to a commercial product? Consider a case of developing a medical device: A small biotech firm does a lot of research in a subject and eventually comes up with an idea for a treatment that postpones aging! It builds a prototype and files a patent. But the clinical trials will take more than 20 years to effectively determine how long actually the treatment can postpone aging? Is patent law really serving to protect the firm’s economic rights in this situation?

Finally, if two inventions reach the same end product, independently from each other, file for patent right at the same time, the inventor who comes up first with the idea wins the patent right. In this case, the court usually draws evidence from the laboratory records and design history notes to determine who comes up with the successful idea first. But is it also a fair treatment for the losing party, considering that a lot of effort and financial resources were committed into creating something that helps the society, especially when they do not commit any infringement because they simply do not know there existed another party that also pursue the same end using a similar method?

Is there anyway to modify the existing patent law to reach a fair solution to the three scenarios mentioned above? What is your opinion?

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5 thoughts on “Patent law:the right to exclude others or simply the right to copy from others?

  1. I think that 20 years is a reasonable amount of time for a patent to exist in today’s society. Look at our world today in 2012 as compared to 1992. The internet alone was only invented 22 years ago, and look where it is now. I think our world is becoming an increasingly fast paced invention environment in which a 20 year span seems like a long life-span before a patent expires. I think this also brings into debate the idea of monopolies of a certain product. If a product did indeed have a monopoly, should it hold this monopoly for the 20 years of its patent?

    • The clock starts when the prototype is submitted for the patent process. Not the final commercial product. For most products, it is a great idea to file a patent as soon as possible because it will keep others out of your research and development topic because it doesn’t take long to develop a commercial product. But some products (medical instruments, for instance) take forever to proceed from the initial prototype stage to the final commercial product. In this case, the patent owner loses time to make money out of his invention.

  2. I just wanted to point out that patent law, even though it usually seems to be portrayed as the bulwark of a free market system, is actually the OPPOSITE of a free market system. If company A makes a product that no one else can, and then company B figures out how also to make it and to thus LOWER the price, thereby delivering more overall value to society for fewer resources, that is the core of the moral argument for the utility of free markets. Patent, trademark, and copyright laws are all examples of ANTI MARKET regulations that nonetheless we have decided politically and socially are necessary.

    So when some advocates for “less regulation” to advance business decry the problem of “too much government regulation” I find it amusing they rarely mean less intellectual property law.

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