A Case for Weakening Patent Rights

Abstract

(Excerpt) In Part I, this Article introduces the new and emerging technologies, including the Internet, cloud computing, three-dimensional (“3D”) printing, and synthetic biology, which will bring this radical change. Part II provides an overview of the innovation cycle, including the stages of basic research, inventing and prototyping, product development, marketing, and distribution. It also describes, in detail, how these new technologies are dramatically lowering the costs and risks of all stages in the innovation cycle. Part III considers how lawmakers might adapt patent law to account for the new age of innovation and its lower costs of innovation. This Article explores both the magnitude of the change and the method by which that change should be accomplished; specifically, it analyzes various factors that might affect the magnitude of the change to patent strength, such as nonmonetary incentives to innovate, decreased costs of copying innovations, and concerns about U.S. companies’ competitiveness in a global marketplace. After considering these factors, this Article recommends that lawmakers weaken patents by at least twenty-five to fifty percent. Such a change would not only account for decreased costs of innovation, but also would be large enough for the change to be unequivocally felt and studied. To accomplish this reduction in patent strength this Article explores shortening the patent term, but with the understanding that to do so would be politically difficult. Thus, it recommends dramatically raising patent maintenance and renewal fees for the end portion of patents’ lives. Finally, this Article also briefly explores doctrinal changes that could weaken patents in specific technology sectors and explain why we consider them a second-best option.

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