Kritika: Essays on Intellectual Property
Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich
Chapter 3: Patent examination and legal fictions: How rights are created on feet of clay
Patents are often considered as creating a true ‘property’, comparable to the rights over a piece of land. But the exclusive rights granted by patents are based on the assessment of compliance with standards that are subjectively interpreted and applied by patent offices and courts. The boundaries of a protected invention are also subject to interpretation. Moreover, in granting patents a number of legal fictions are applied. This chapter examines some of these legal fictions. It intends to show how weak the grounds for creating monopolies over knowledge through the grant of patent rights often are.
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