Patents are important, complex and bring up controversial issues that affect many people. This post briefly examines some of the issues around patents that would be of interest to people in other sectors.
1. Language and claim construction
Much has been written about how to interpret claims, and claim construction is often pivotal to the outcome of litigation particularly in the US. Indefiniteness was the subject of a recent US Supreme Court decision Nautilus (see here). Clearly there is an inherent uncertainty in language which will always be there. In addition in certain territories the claims are also the basis of a doctrine of equivalents or ‘purposive’ construction.
Claim construction can therefore help us to formulate theories of how to approach text (see here).
For further academic articles about claim construction see here, here, and here.
2. Morality of Biotech Inventions
In Europe the Biotech Directive (see here) has given guidance on biotech inventions which are considered unpatentable for morality reasons. Subsequently the Brustle decision tackled the patentability of embryo stem cells (see here). Whether or not one agrees with these it is a platform to discuss and formulate a ‘European’ view of morality. That can then feed into discussions such as these.
Patents are complicated and take place in the context of human systems. That means we must be aware of the limits in understanding them to the extent imposed by ‘post-structuralism’, i.e. there may not be an underlying ‘structure’ or ‘right answer’ in a situation. That means for any given situation it may not be possible to achieve complete certainty to ‘is this claim scope patentable?’ or ‘how much is this patent worth?’.
4. Patents and Economics
How do patents affect innovation? Generally of course patents are judged to be good incentives for promoting innovation (see here). However the situation is complex and there is evidence that patents inhibit the subsequent development of an invention by other parties (see here). Clearly the answers to these questions will also vary from country to country (see here).
5. International Relations
Each nation has agreed to respect other nation’s patent rights. However there have been accusations that this can lead to a sort of neo-colonialism (see here). Clearly this is a complex issue, but the power of IP monopolies means they can conflict with national interests. However harmonisation of IP laws has also demonstrated the power of countries to work together and to develop joint institutions such as the European Patent Office.
6. Ways of Doing Research: Open Innovation
The traditional way of doing research and then patenting is being challenged by the rise of open innovation and collaborative models of research. This leads to the question of how the patent system should respond (e.g. for defensive patent licencing see here), and whether in fact it is time to get rid of it altogether (see here).