Patents

Patents constitute only one of several forms of existing IPR, but they deserve a specific introduction in today's context because of their significance of the ways in which scientific knowledge has moved away from the public domain. Patents have consistently been conceived as privileges granted by the State over their several centuries of development. Their specific features have, however, significantly evolved from the formative years when patents were privileges granted by a ruler for specific activities such as importing products unavailable in the country to today where patents are meant to reward inventiveness.

The introduction of patent rights can be justified in different ways. They can, for instance, be justified as a reward for the effort expended in contributing to technological or economic development. This reward theory is largely applied in patent laws and treaties, but it does not provide a comprehensive basis for understanding patents. It does not account, for instance, for the fact that in practice, a patent examiner is not concerned about the economic relevance of an invention but only about the technical factors, which constitute the conditions for patentability in existing patent laws and treaties. Further, the reward theory tends to dissociate the patents system from the social utility of the inventions and does not provide a mechanism for ranking technologies that foster the sustainable development of a country and those that do not³.

Patents can also be seen as a tool to promote technological development in fields where the low cost of copying an invention is likely to limit the economic incentives for inventiveness. One of the roles of patents is, thus, to ensure that information providers do not lose rights to the information by disclosing it given that intellectual contributions can be used by an infinite number of persons simultaneously.

Notes and References

³ Thus, the reward theory could not have accounted for the limitations on patentability in the health sector in the Patents Act 1970.