Do Legal Rules Deliver Effective Economic Outcomes?
Chapter 3: Who determines patent policy: judges, lobbyists or legislatures?
Patent Acts generally do not state any objectives. They simply set out the conditions for patent grant and the benefits to the patent-holder. The European Patent Convention (EPC) states no purpose except to “to strengthen co-operation between the States of Europe in respect of the protection of inventions” (preamble). The Australian Patents Act 1990 states no objective, simply limiting the grant of a patent to an invention which is “a manner of new manufacture”. In the USA, Article 1, Section 8 of the Constitution gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” While not repeated in any form in their patent statute, legal decision-makers in the USA sometimes refer to this authoritative statement of purpose, though not all agree that ‘useful arts’ means technology. What patent statutes do say is what criteria must be met for grant: novelty, inventiveness and utility. They also say that the grant of a patent monopoly is conditional: information about the patented invention must be disclosed. Because the objective of patent policy is not specified in the legislation, but the disclosure conditionality is, disclosure is often given weight in legal circles as the objective of the system (Ghosh 2004).
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