Sookman CIGI Intellectual Property a Path to Progress

McCarthy Tétrault LLP / mccarthy.ca

McCarthy Tétrault Advance™Building Capabilities for Growth

Law and Innovation: Is Intellectual Property a Path to Progress

CIGI Institute for New Economic Thinking

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Barry B. SookmanMcCarthy Tétrault [email protected] April 12, 2014


Rationale for Patents

¬ Article I, § 8, cl. 8, of the U.S. Constitution gives Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

¬ It is considered a bargain (especially in Canadian patent law). The inventor secures exclusive rights in return for new, ingenious, useful and unobvious disclosures and dedication of the invention to the public when the term expires.

¬ Patent law is assumed to create incentives to invest in, engage in, and to take risks to do R&D that fosters innovation and new goods and services that benefit the public more than the disadvantages associated with patents.

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Goals of Patent Law

Promote the disclosure of inventions. This is assumed to have several beneficial results.

¬It results in inventions that would not be disclosed or devised in the absence of a patent system.

¬It results in knowledge that can be freely exploited when the patent expires. The benefit ensures both to the public that uses the invention to make products and to consumers who benefit from exploitation by others.

¬The public disclosure through patent applications is immediately available for others to build upon. It speeds the progress of scientific endeavor and facilitates experimentation.

¬The public disclosure requirements to obtain a patent will stimulate further innovations.

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Limiting Monopolies¬ Patent eligibility principles are broad to promote innovation, but are not

unlimited.

¬ Patent laws requirements that an invention be novel, nonobvious, useful, and be fully described are intended to balance stimulating innovation without impeding progress.

¬ The novelty requirement is intended to ensure that patent law does not impede innovation by locking up information in the public domain.

¬ The “not obvious” requirement is intended to preclude patents to something that would have been obvious to a person of ordinary skill in the art.

¬ The disclosure (sufficiency) requirement is intended to enable third parties to make and use the invention and to know the boundaries of the invention. The public is supposed to know what is “safe and lawful”.

¬ It is assumed that free exploitation of ideas will be the rule to which the protection of patents is the exception.

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Patents &Progress

¬ Patents role in supporting innovation.

¬ Study patents/reverse engineering.

¬ Inventing technologies/patents.

¬ The proliferation of patents, patent thickets, multiple patents covering products, SEPs.

¬ Patents with claims that are too broad, vague or, of questionable validity.

¬ Patent assertion entities (NPEs and patent trolls).

¬ One size fits all.

¬ Rocket dockets, jury trials, international patent wars.

¬ IP education.

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Sookman CIGI Intellectual Property a Path to Progress