Patents exist to reward invention and creation, to protect what is new and to encourage innovation. In exchange for the inventor disclosing his or her idea to the world in sufficient detail for it to be replicated, they receive a strong monopoly right which allows them to stop a third party using their technology without permission. The law makes no distinction (leaving aside the way damages are calculated) between an infringer who has copied the patentee’s technology and one who has had the misfortune to invent the same technology, but came second in the race.
Going back to the roots of the patent system, the reason for granting an absolute monopoly was to protect the investment of the innovator and to nudge him (and it was almost certainly a “him” at that point) into sharing his technology with the world so that, at the end of the patent term, the invention became openly available for use. It would further stimulate innovation by encouraging others to invent around the patent rather than waiting for the term (around twenty years in most countries) to expire.
It is a worthy starting point, but over the years the expense of patent protection – especially when you factor in not only the cost of obtaining the rights in the first place, but the cost of enforcing them in the courts has proved prohibitive to many. Large corporations may build up vast patent portfolios and in some industries it is simply not possible for potential challengers to break into the system. From time to time, a story hits the press about a corporation “patenting” something (usually a plant) that has been used by a particular population for generations and now they cannot subsist in the way that they always have done. Although these stories are frequently rife with inaccurate reporting (of the underlying science as well as the legal system which protects it) it is undoubtedly the case that intellectual property is at times used in an unethical manner and sometimes as a means of oppression.
Reports of such unsavoury use of intellectual property rights has led to an ethical backlash in some quarters, with people deliberately disclosing their innovations without patent protection, in order to give it freely to the world. The rise in open source software is a good example and it has a good feel to it: you may freely use what I have developed, so long as you reciprocate, by permitting the open source community free access to whatever you develop on the back of it.
When I was growing up, an awakening of awareness of the environmental and humanitarian cost of consumerism led to an explosion of certification marks, providing products with ethical credentials which allowed the consumer to feel better about the choices they made at the shops. Whilst many of these programmes are steeped in integrity, just as many have have been exposed as shams – or worse – scams, with the custodians of the credentials marks selling them to anybody prepared to pay, without checks on their sustainability or the conditions of the workers. The exposure of these practices undermines the whole system of ethical credentials as consumers lose trust in certification marks as a guarantee of ethical production.
But here is where technology can step in and save us from the unscrupulous. Technology can be used to monitor, track and report on the sustainability of all stages of production. Technology can enable us to trace products from their source right up to the point that they enter our homes or offices and can guarantee a product in a way that no certification mark ever could.
And this provides an excellent opportunity to use intellectual property to protect those very workers, growers or producers whose activities might in the past have been oppressed or priced out of the market by intellectual property. Where technology might be used to expose unscrupulous practices in an industry, existing big players may have an interest in patenting it in order to block others from using it and thereby exposing their own unethical activity. But what if those with an interest in furthering ethical and sustainable production could collaborate to achieve broad patent protection and then permit low-cost access to it, in turn ensuring better prices for the original manufacturers or farmers because their product is demonstrably sustainable and traceable.
Maybe it’s the company I keep these days, but I am seeing more and more philanthropic use of intellectual property and wherever there is an opportunity to be involved in this, it makes me very happy to do so.
Intellectual Property Law Update by Gemma Cullis, Partner at Aria Grace Law