21st Century Challenges in Intellectual Property and Knowledge Governance
Elgar Intellectual Property and Global Development series
Edited by Dana Beldiman
Chapter 5: Patent eligibility - the 'sick-man' of patent law
‘Marking off boundaries in intellectual property is essentially a policy choice which has major implications for innovation. Boundaries that are marked off too broadly may impair the ability of individuals to create, innovate or improve upon the works of others. Boundaries that are set too narrowly, or that fail to protect the most socially valuable aspects of writings or inventions, may diminish the incentive to create or innovate. To promote science and the useful arts, policymakers must strike an optimal balance between what belongs to a creator and what belongs to the public domain.’ This quote clearly sets out the major challenge of patent law: to balance incentive and access, private interests and public interests, and to delineate that which is eligible for patent protection from that which belongs to the public domain. In the following pages, we investigate these relationships and their manifestation (or lack thereof) in patent eligibility practices. Section 2 sets out the patent rationale to induce innovation, but simultaneously balance access and public policy concerns. Section 3 explains the normative role of patent eligibility and its function in this respect. Section 4 investigates the practice of patent eligibility; retracing the evolution of patent eligibility standards, in particular the technical effects doctrine, in the praxis of the Technical Boards of Appeal (TBoA) of the European Patent Office (EPOff). Section 5 discusses how patent eligibility standards have been eroded and the effects on the assessment of inventive step.
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