Flipping the paradigm of weak patent rights: from theories to evidence

Abstract

Abstract In recent years, we have been confronted with complex challenges requiring coordinated global responses, such as the Covid-19 pandemic and climate change. At the same time, a negative sentiment towards IP rights (IPRs)—and patents in particular—has gained momentum. Sceptics claim that patents hinder the technology adoption needed to tackle these global crises, and proposals to weaken patent rights have intensified. A closer examination of these efforts reveals that they are generally expressed in two ways: on one side, anti-patent advocacy is backed up by popular, although empirically shaky, theories aimed at questioning patents’ effectiveness; on the other, the paradigm of weak patents is put forward through more incremental and—only at first glance—subtle policy changes that can potentially undermine the foundations of a balanced patent system. We address and review both efforts. Firstly, we examine the ‘first-mover advantage’ theory and we find it inadequate as a substitute for patent protection. Secondly, we focus on the cellular connectivity sector where efforts to weaken the patent system are intense. We discuss three common policy proposals: (i) royalty-free licensing for standard essential patents (SEPs), (ii) limiting injunctive relief under the proportionality principle and (iii) narrowing patent transfers and technology markets. We demonstrate that these seemingly minor changes can destabilize the patent system, and we explore the importance of a balanced licensing framework for the emergent Internet of Things (IoT). Ultimately, we highlight how a strong, efficient and balanced patent system remains crucial for fostering research and development (R&D), incentivizing innovators and effectively addressing the global challenges of our current times.