Innovation Without Patents

Innovation Without Patents

Harnessing the Creative Spirit in a Diverse World

Edited by Uma Suthersanen, Graham Dutfield and Kit Boey Chow

A question the book considers is how far legal protection should extend to inventions that may only just, or indeed not quite, meet the conventional criteria for patentability, in terms of the level of inventiveness. Innovation without Patents offers a thoughtful and empirically rich analysis of the current system in a number of developed and developing countries in the Asia-Pacific. It asks whether such innovations should remain free from patenting, or whether alternative intellectual property regimes should be offered in such cases, and indeed whether the requirements change depending on a country’s level of development. This discussion is capped by a number of proposed policy options.

Chapter 2: Innovation and the Law of Intellectual Property

Uma Suthersanen and Graham Dutfield

Subjects: innovation and technology, intellectual property, law - academic, intellectual property law


Uma Suthersanen and Graham Dutfield 2.1 The Patent System The origins of patents for inventions lie in the ancient European state privileges which granted an exclusive right with the aim of encouraging domestic innovation and exploitation of technology – indeed, ‘inventive activity’ was not a necessary requirement as the value lay in the dissemination of the teachings inherent in the patented technology. Furthermore, the prevailing mercantilist ethos of the time accepted the principle that a system of exclusive privileges would nurture innovative activity which would, in turn, promote the economic well-being of the country. The mercantilist regarded the state as the appropriate instrument for promoting the well-being of his country; in his view the country was regarded as a unit with national interests, irrespective of the interest of particular sections of individuals. Accordingly, the state harnessed and controlled resources, skills and products for the purposes and profit of the state. Patent privileges were merely one species in the genus of privileges, charters, franchises, licences and regulations issued by the Crown or by local governments within the mercantilist framework. By the end of the eighteenth century, the general consensus, encouraged by Adam Smith and Jeremy Bentham, was that the existence of the patent regime Early examples of codified patent customs are the 1474 Venetian Decree (the decree broadly granted exclusive rights to an inventor of a machine or process, including the right to request damages and the destruction of infringing devices); and the 1623 British Statute of Monopolies 1623, 21 Jac. I...

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