Concepts, Actors and Practices from the Past to the Present
- Queen Mary Studies in Intellectual Property series
Edited by Stathis Arapostathis and Graham Dutfield
Chapter 3: The photographic paper that made Leo Baekeland’s reputation: Entrepreneurial incentives for not patenting
Recent research indicates that only a remarkably small share of inventions may ever have been patented, even after the start of the ‘pro-patent era’ around 1980 (cf. Granstrand, 1999: 4–8; Moser, 2011; Fontana et al., 2011). A closer look at inventors’ motives for not patenting therefore seems timely. For the sake of clarity, a distinction will be drawn between ‘negative’ and ‘positive’ motivations that have been discussed in earlier studies. Perhaps the most straightforward examples of the former – that is, not acquiring patents out of necessity rather than choice – have stemmed from restrictions regarding patentable subject matter. Software and business method patents, for instance, were rarely allowed before the 1980s; not to speak of the even more controversial extension of patentability into the realm of living organisms. Additionally, only inventions that were deemed sufficiently novel, unobvious and industrially useful have typically qualified for patent protection. As with the patentable subject matter requirement, these criteria of patentability have been open to interpretation. For example, patent examiners’ and judges’ ‘liberality’ in evaluating their fulfilment has evolved over time, depending, among other things, on shifting assessments as to whether or not inventions held to have almost automatically ‘arisen’ from a given set of circumstances (for example, earlier scientific discoveries, systematic experimentation in large industrial research laboratories and/or a strong economic demand) deserved being patent-protected (Dutfield, 2009: 6–7; Israel, 2006; MacLeod, 2007: chapter 9; Post, 1976; Owens, 1991; Seckelmann, 2006: 5–6). Perhaps more compelling are cases in which innovators who positively assessed their chances of being granted intellectual property (IP) protection nevertheless did not submit patent applications.
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