Do Legal Rules Deliver Effective Economic Outcomes?
Chapter 4: In the national interest: defining patentable inventions
The economic discussion in Chapter 2 shows that patents will serve the national interest if they are granted for innovations which would not otherwise take place and which have spillover benefits that more than offset their cost. This is a far cry from the rigid set of prescriptive rules that currently constitute patent policy. But while it is easy to describe in general terms the kinds of inventions that should merit a patent grant, it is far more difficult to set up simple and robust rules that are capable of easy implementation. This chapter begins by discussing in more detail the kinds of inventions where there would be a national interest in providing a patent incentive. The discussion includes the issues of inducement, the quantum and measurement of spillover benefits, whether a technological basis is needed, issues involved in patenting mathematics and software and the separation of ideas from artefacts based on them. The discussion concludes with a consideration of the particular issues raised by combinations of known elements or processes and whether the yardstick of contributed new knowledge or know-how can be used to determine patentability for such inventions.
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