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Judge, Elizabeth F.; Gervais, Daniel J. --- "The limits of patents" [2015] ELECD 230; in Gervais, J. Daniel (ed), "International Intellectual Property" (Edward Elgar Publishing, 2015) 246

Book Title: International Intellectual Property

Editor(s): Gervais, J. Daniel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781782544791

Section: Chapter 8

Section Title: The limits of patents

Author(s): Judge, Elizabeth F.; Gervais, Daniel J.

Number of pages: 26

Abstract/Description:

Intellectual property rights are increasingly subject to skepticism that they indeed function as promised to generate more creativity and innovation in society. The critiques link to such larger movements, such as the access to knowledge movement and the development agenda, and have launched calls for more evidence-based inquiries as to whether society truly gains a net benefit by according these exclusive rights to creators and inventors. Patents raise particularly acute public policy questions, given the potential that the limited term monopoly rights accorded by patent law could negatively impact access to, and wide dissemination of, technology and research tools. There are growing concerns that the patent bargain has been struck too favorably for patentees, and that the uneven balance is growing even more skewed. Critics assert that too many patents are being granted for “inventions” that amount to no more than common knowledge, trivial increments on existing knowledge, and old ideas. In a related concern, many argue that patent rights are expanding to restrict access to the basic building blocks required for research (such as genes and standards). With the advent of the TRIPS Agreement, which links intellectual property with international trade and sets fairly high thresholds for minimum intellectual property rights, there have also been concerns about the significant impact of patents on developing nations and indigenous populations, especially with respect to health- and agriculture-related inventions, and calls to align the international intellectual property system with the human rights regime.