Introductory Remarks

Abstract

The invention of the patent system was a great achievement—this is a statement on which nowadays almost all lawyers and economists would probably agree, at least with reference to the situation in the developed countries. Exactly how an optimal system should look, however, is the subject of continuous debate. For some time, there has been a discussion underway about the phenomena of the current patent law system. New terms such as patent troll, submarine patent, patent thicket or patent ambush are often used to describe the situation. All these terms obviously have a negative touch and make clear that the current system might not be optimal. Some of these problems may occur just because of the negligent and imprecise application of current patent law, which may result from the organisation of the patent offices or overly complex procedural rules. Solutions in this respect are discussed in detail under the term patent quality. But, improvement could also be achieved by amending patent and competition law. Some authors have focused on the initial entitlement, i.e., on pre-grant remedies. They have investigated, for example, what should be patentable and for how long. Another important field concerns issues regarding the time after the patent grant. There, the focus lies on whether patent law provides effective measures, procedures and remedies to ensure the enforcement of IP rights, especially against piracy, as has been of concern with the European Enforcement Directive. Another basic post-grant issue, which to some extent also addresses the field of open innovation if the term is understood in a broad sense, is whether patents should constitute exclusive or non-exclusive rights. This question means here, with reference to the study by Calabresi and Melamed, whether an initial entitlement should be enforced by property or liability rules. Under the former, the patent owner may exclude others from using his invention, but not under the latter, although the owner is always entitled to receive a certain amount of remuneration. In patent law, exclusive rights may become non-exclusive under certain conditions, for example, in the case of the grant of a compulsory licence. Of course, all the points mentioned to improve the patent system must be taken into consideration as they are often intertwined. Nevertheless, the focus of this work lies on the particular issue of whether and under what conditions patents should be protected by property or liability rules.KeywordsPatent SystemCompulsory LicenceLiability RuleUnitary EffectPatent OwnerThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.