Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade.Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources that could otherwise be used productively, and also block access to an increasingly important "commons" of enabling technologies (a phenomenon called the tragedy of the anticommons), apply a "one size fits all" model to industries with differing needs,Richard A Posner for The Atlantic. July 12, 2012. Why There Are Too Many Patents in America that is especially unproductive for industries other than chemicals and pharmaceuticals and especially unproductive for the software industry.Bessen, James, and Michael J. Meurer. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton, NJ: Princeton University Press, 2008. 2009 paperback edition, Enforcement by patent trolls of poor quality patents has led to criticism of the patent office as well as the system itself. Patents on pharmaceuticals have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people.Banta D.H. (2001) Worldwide Interest in Global Access to Drugs Journal of the American Medical Association 285 (22): 2844–46 Alternatives to patents have been proposed, such as Joseph Stiglitz's suggestion of providing "prize money" (from a "prize fund" sponsored by the government) as a substitute for the lost profits associated with abstaining from the monopoly given by a patent.Stiglitz, Joseph. Project Syndicate, 2007. project-syndicate.org
These debates are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright.
History Criticism of patents reached an early peak in Victorian Britain between 1850 and 1880, in a campaign against patenting that expanded to target copyright too and, in the judgment of historian Adrian Johns, "remains to this day the strongest [campaign] ever undertaken against intellectual property", coming close to abolishing patents. Its most prominent activists Isambard Kingdom Brunel, William Robert Grove, William Armstrong and Robert A. MacFie were inventors and entrepreneurs, and it was also supported by radical laissez-faire economists (The Economist published anti-patent views), law scholars, scientists (who were concerned that patents were obstructing research) and manufacturers. Johns summarizes some of their main arguments as follows:W.R. Grove: Suggestions for Improvements in the Administration of the Patent Law, The Jurist n.s. 6 (January 28, 1860) 19-25 (online copy at Google Books)B. Sherman, L. Bently: The Making of Modern Intellectual Property Law (CUP 1999), 50-56 [Patents] projected an artificial idol of the single inventor, radically denigrated the role of the intellectual commons, and blocked a path to this commons for other citizens citizens who were all, on this account, potential inventors too. [...] Patentees were the equivalent of squatters on public land or better, of uncouth market traders who planted their barrows in the middle of the highway and barred the way of the people. Similar debates took place during that time in other European countries such as France, Prussia, Switzerland and the Netherlands (but not in the United States). However, in the United States patents on medicines were controversial before 1900 among physicians because they considered them unethical.
Based on the criticism of patents as state-granted monopolies perceived to be inconsistent with free trade, the Netherlands abolished patents in 1869 (having established them in 1817) but later reversed the action and reintroduced them in 1912.Chang, Ha-Joon. "Kicking Away the Ladder: How the Economic and Intellectual Histories of Capitalism Have Been Re-Written to Justify Neo-Liberal Capitalism". Post-Autistic Economics Review. 4 September 2002: Issue 15, Article 3. Retrieved on 8 October 2008. In Switzerland, criticism of patents delayed the introduction of patent laws until 1907.
Contemporary arguments Contemporary arguments have focused on ways that patents can slow innovation by: blocking researchers' and companies' access to basic, enabling technology, and particularly following the explosion of patent filings in the 1990s, through the creation of "patent thickets"; wasting productive time and resources fending off enforcement of low-quality patents that should not have existed, particularly by "patent trolls"; and wasting money on patent litigation. Patents on pharmaceuticals have been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people.
Blocking innovation
The most general argument against patents is that "intellectual property" in all its forms represents an effort to claim something that should not be owned, and harms society by slowing innovation and wasting resources.
Law professors Michael Heller and Rebecca Sue Eisenberg have described an ongoing tragedy of the anticommons with regard to the proliferation of patents in the field of biotechnology, wherein intellectual property rights have become so fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments.
Some public campaigns for improving access to medicines and genetically modified food have expressed a concern for "preventing the over-reach" of intellectual property protection including patent protection, and "to retain a public balance in property rights".Susan K Sell (2003), Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge, 2003 Cambridge University Press: Cambridge Studies in International Relations: 88; quoted from page 179, see also page 5. Some economists and scientists and law professors have raised concerns that patents retard technical progress and innovation. Others claim that patents have had no effect on research, based on surveys of scientists.
In a 2008 publication, Yi Quan of the Kellogg School of Management concluded that the imposition of pharmaceutical patents under the TRIPS Agreement did not increase innovation in the pharmaceutical industry. The publication also said there appeared to be an optimal level of patent protection that increased domestic innovation.
Theory of innovation The theory of patent law assumes that most innovation is driven by individuals working alone. Mark Lemley rebuts this with well-documented evidence that most inventions are developed simultaneously by several independent teams and that the actual implementation in the US does not reflect this theory. He also notes that at least 90% of patent infringement lawsuits are against researchers working independently from the plaintiff, not copiers of the plaintiff's invention. In the theory's stead, he proposes either abolishing patent law or a new legal theory based on promoting a race to develop a new technology. The Copyright Clause of the US Constitution, which moved jurisdiction over intellectual property from the states (under the Articles of Confederation) to the federal government, was motivated by competing patent claims on the steamboat under the previous patent system.
Poor patent quality and patent trolls Patents have also been criticized for being granted on already-known inventions, with some complaining in the United States that the USPTO fails "to do a serious job of examining patents, thus allowing bad patents to slip through the system."Lemley, Mark A., Rational Ignorance at the Patent Office (February 2001). Northwestern University Law Review, Vol. 95, No. 4, 2001. On the other hand, some argue that because of low number of patents going into litigation, increasing quality of patents at patent prosecution stage increases overall legal costs associated with patents, and that current USPTO policy is a reasonable compromise between full trial on examination stage on one hand, and pure registration without examination, on the other hand. Also, the US offers several options to challenge the validity of (or to correct) an issued patent without going to court, such as a postgrant review within 9 months after issuance, inter partes review following 9 month after issuance, ex parte reexamination, supplemental examination and reissue.Post Issuance Procedure Matrixperkinscoie.com
Enforcement of patents – especially patents perceived as being overly broad – by patent trolls, has brought criticism of the patent system, though some commentators suggest that patent trolls are not bad for the patent system at all but instead realign market participant incentives, make patents more liquid, and clear the patent market.James F. McDonough III (2006) The Myth of the Patent Troll accessed 2010-01-17
Some patents granted in Russia have been denounced as pseudoscientific (for example, health-related patents using lunar phase or religious icons).
Litigation costs According to James Bessen, the costs of patent litigation exceed their investment value in all industries except chemistry and pharmaceuticals. For example, in the software industry, litigation costs are twice the investment value. Bessen and Meurer also note that software and business model litigation accounts for a disproportionate share (almost 40 percent) of patent litigation cost, and the poor performance of the patent system negatively affects these industries.Rob Wheeler and James Allworth for the Harvard Business Review. Sept 15, 2011 U.S. Patent Overhaul Won’t Help Innovators
Different industries but one law Richard Posner noted that the most controversial feature of US patent law is that it covers all industries in the same way, but not all industries benefit from the time-limited monopoly a patent provides in order to spur innovation. He said that while the pharmaceutical industry is "poster child" for the need for a twenty-year monopoly, since costs to bring to a market are high, the time of development is often long, and the risks are high, in other industries like software the cost and risk of innovation is much lower and the cycle of innovation is quicker, and obtaining and enforcing patents and defending against patent litigation is generally a waste of resources in those industries.
Pharmaceutical patents Some have raised ethical objections specifically with respect to pharmaceutical patents and the high prices for medication that they enable their proprietors to charge, which poor people in the developed world, and developing world, cannot afford.Ferreira L. (2002) Access to Affordable HIV/AIDS Drugs: The Human Rights Obligations of Multinational Pharmaceutical Corporations Fordham Law Review 71(3):1133–79 Critics also question the rationale that exclusive patent rights and the resulting high prices are required for pharmaceutical companies to recoup the large investments needed for research and development. One study concluded that marketing expenditures for new drugs often doubled the amount that was allocated for research and development.Barton J.H. and Emanuel, E.J. (2005) The Patents-Based Pharmaceutical Development Process: Rationale, Problems and Potential Reforms Journal of the American Medical Association 294(16): 2075–82
In 2003, World Trade Organization (WTO) reached an agreement, which provides a developing country with options for obtaining needed medications under compulsory licensing or importation of cheaper versions of the drugs, even before patent expiration.