A Good Idea Gone Bad. Can we still justify patent monopolies?

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Title of host publicationGreat Debates in Corporate & Commercial Law
DateAccepted/In press - 19 Oct 2018
PublisherPalgrave
EditorsLorraine Talbot, Andrew Johnston
Original languageEnglish

Abstract

Intellectual property is a surprisingly strange beast. Whilst, society as a whole seems to have become somewhat accustomed (or as some critics might argue, inured) to the concept that the products of intellectual effort are protected by property rights, the true (and highly problematic) character of intellectual property itself, the normative questions which surround its existence, and its societal impact sometimes appear unappreciated. Students who first encounter the subject understandably focus on not confusing a patent with a copyright, a copyright with a trade mark, or a trade mark with a design right. They then grapple with subject matter of protection, validity requirements, duration periods, and infringement exemptions for a seemingly endless spectrum of disparate rights. However, this effort can lead to a misapprehension that the world of intellectual property is (save for some minutiae) relatively settled and without substantial normative problems. That is very far from the truth and it is the aim of this work to highlight some of the key problems with the control of the products of intellectual effort and why radical lawyers may wish to take issue with the current position. The focus of this piece is on the control of inventions by way of patents. It will describe why the propertisation of ideas is a significant restriction on freedom which requires substantial philosophical justification, and the extent to which that justification may be undermined by the behaviour of patent right holders. The piece will, in particular, examine the phenomena of strategic patenting, patent thickets, pharmaceutical patent evergreening, and patent trolls, and the impact of patents on the global South.

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