Innovation Without Patents
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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.
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Chapter 4: Policy Considerations for Governments

Uma Suthersanen and Graham Dutfield


Uma Suthersanen and Graham Dutfield In essence, the choices facing policymakers in respect of sub-patentable inventions are far from straightforward. Questions for governments are: Should we leave sub-patentable inventions unprotected (sub-patentable meaning those inventions which show little or no inventiveness)? l Should we lower the inventive step threshold under the standard patent law so that more inventions, including minor sub-patentable innovations, become patentable? l Should we seek to create alternative legal means of protection such as a tort or misappropriation law, or a hybrid property rights system such as design rights? The fundamental precondition for a decision on whether or not to adopt UM protection is that developing countries must map out and evaluate their own industrial and innovation base, and identify its current and long term economic requirements. The following points elaborate what type of specific considerations and questions need to be asked. l 4.1 The Right Type of ‘Intellectual Property Institutional Order’? Intellectual property systems are more than just pieces of legislation, and may best be viewed as public policy regulatory institutions. As such, they consist of the relevant statutes, rules and regulations plus the government agencies, courts and professional people involved in interpretation, implementation, enforcement and reform. Institutions are not static but evolve over time, and they operate in different ways according to the context. Thus, they may be appropriate and functional in one context but inappropriate and dysfunctional in another, and it can be very difficult to predict how well such an institution transplanted to a...

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