The Structure of Intellectual Property Law
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The Structure of Intellectual Property Law

Can One Size Fit All?

Edited by Annette Kur and Vytautas Mizaras

This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.
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Chapter 3: Patents and Progress: The Economics of Patent Monopoly and Free Access: Where Do We Go From Here?

Rudolph J.R. Peritz


Rudolph J.R. Peritz* Some chapters in this collection discuss the grounds for protecting intellectual property rights. This chapter is one of several that investigate the other side – the public domain and free access. It takes an economic perspective, taking as its point of departure a landmark article about patents written in 1950 by two economists, Fritz Machlup and Edith Penrose. Questions about the public domain and free access span the entire array of intellectual property rights – from patent to copyright to trademark, and beyond. For advocates of free access, patents present a more difficult policy problem than copyright and trademark, in my view, because patents do not have an obvious free expression connection or cultural component to invite open access. Both copyright and trademark have fair use defenses that, in the US, stand shoulder to shoulder with freedom of expression and a socio-political marketplace of ideas. US patent law has no fair use defense and its experimental use defense is only a mirage. Patent’s marketplace of ideas stands in the shadow of commercial markets for goods and services, and for technology transfer. That is not to say there is no overlap or common ground; perhaps the most interesting and challenging overlap involves computer software, although, even there, inventors look more like authors of textual invention. In any event, patent scholarship, if not patent protection, has been a breed apart. When patent scholars have written about access and the public domain, they have addressed technological development and economic growth. Thus access...

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