Kingston, William --- "Why Patents Need Reform, and Some Suggestions for It" [2009] ELECD 434; in Arup, Christopher; van Caenegem, William (eds), "Intellectual Property Policy Reform" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Policy Reform

Editor(s): Arup, Christopher; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441637

Section: Chapter 2

Section Title: Why Patents Need Reform, and Some Suggestions for It

Author(s): Kingston, William

Number of pages: 18

Extract:

2. Why patents need reform, and some
suggestions for it
William Kingston
There is an emerging consensus amongst users and students of the patent
system that it is not performing as it ought to, and that this performance is
getting worse. A recent comprehensive analysis of a large number of US
empirical investigations concluded that:

The performance of the United States patent system deteriorated markedly during
the 1990s as the private costs of patent litigation soared.
By the late 1990s, the risk of patent litigation for public firms outside of the
chemical and pharmaceutical industries exceeded the profits derived from patents.
This implies that patents likely provided a net disincentive for innovation for the
firms who fund the lion's share of industrial R&D, that is, patents tax R&D. (Bessen
and Meurer 2008, p. 144)

And since most other countries, as will be seen below, have replicated the US
system, it is a reasonable assumption that this pattern is also the global one.
The simple reason why this has happened is that it is nobody's business to
see that patents work properly. Consequently, they have been shaped by the
interests of those who could benefit from them, rather than from any vision of
the public good. The subtitle of the book from which the above quotation is
taken is `How Judges, Bureaucrats and Lawyers Put Innovators at Risk'.


I. INVESTMENT IN INNOVATION
Economic innovation depends upon investment, partly under uncertainty and
partly under risk, which is uncertainty ...