The Future of the Patent System

March 10, 2005

Throughout history, the patent system has represented an expression of difficult political compromise between inventors and users of new knowledge and/or between short-term interests (low prices to present users) and long-term interests (new technological development). Because it is a tool of political control, it merits greater public attention.

The general trend is a continuous strengthening and expansion of patent rights. More and more products and processes are being patented and more and more people can obtain patents. The term of protection has been extended, administrative burdens reduced, and the protection and enforcement of patents strengthened. While advances in technology (especially in the fields of information- and biotechnology) leap forward at a rapid pace, amendments to the patent law move slowly. This imbalance may translate into a possible mismatch between the reward offered by the patent system and the social benefits gained.

For these reasons The Danish Board of Technology in 2004 set up a working group of experts from different fields of expertise to discuss the future of the patent system – with the aim of stimulating a broad debate among as well experts as politicians in Europe about the future of the patent system:

  • Has the notable rise in the number of patents promoted or hampered technological and economic development?
  • Have the enhanced possibilities for patenting in public research institutions promoted or hampered development of knowledge – especially basic research?
  • Are the various limitations to patent protection – both within and outside the system itself – sufficiently countering the potentially negative effects of the patent system?
  • Is the patent system sufficiently flexible and effective to contain the very different trends in technological development?
  • Can the current patent practice ensure effective patenting procedures, a high patent quality and effective enforcement?
  • What should be patentable and what should not?

These are some of the questions the working group addressed. The conclusions and recommendations for a patent system of the future were presented in a report which can be downloaded from the link in the sidebar.
Among the recommendations were:
A recommendation of the establishment of a remuneration-based patent system in which a patent holder cannot prohibit the exploitation of his patent.
In light of the many unanswered questions regarding the effects of the patent system, another recommendation were to develop a more rigorous basis for instituting reform.
When instituting reforms, a kind of “precautionary principle” should be followed in which implementation proceeds only if it is ascertained that technological advancement will result.

The working group´s conclusion was that it is no longer tenable to keep shoring up the old system without producing solid evidence of the need for doing so. In particular, advancements in biotechnology and information technology have put the system under pressure. Yet, the impact of these advancements has resulted in positive discussions about the fundamental nature of the system itself. The group recommended slowing down and attempting to better control the patent system’s evolution in order to promote the appropriate development and exchange of knowledge that is needed for future growth and welfare.

The project report contains contributions provided by working group members and numerous working group discussions at Danish Board of Technology meetings. Articles and reports on the patent system were reviewed, and speakers from different fields of expertise were invited to share their knowledge with the working group. A workshop was held with 20 actors involved in patenting who were invited to comment on a preliminary draft report. The Danish Board of Technology set up the working group and defined the scope of the project, but the recommendations of the report are the sole responsibility of the working group.
The members of the working group comprised:

  • Erik Hoffmeyer, former governor of Danmarks Nationalbank (chair).
  • Peter Lotz, head of department, associate professor, Department of Industrial Economics and Strategy, Copenhagen Business School.
  • Knud Overø, former CEO of Ferrosan
  • Jens Schovsbo, professor, Faculty of Law, University of Copenhagen.
  • Tine Sommer, associate professor, Department of Law, The Aarhus School of Business.
  • Christian Friis Bach, associate professor, Department of Economics and Natural Resources, The Royal Veterinary and Agricultural University, and international director, DanChurchAid.

 

Revised edition

The report was first written in Danish and then translated into English. A first translation was published in June 2005. Unfortunately, several flaws were discovered. They have been corrected in this revised edition.

Hard copies can be ordered from the Danish Board of Technology, tekno@tekno.dk, at the cost of 50 DKK per report plus shipping.