Patents

1The Purpose of Patents

1.1. Introduction

Proponents of a patent system for inventions often present it as indispensable for supporting innovation, in the sense that innovation would not be fully realized without patents. From the outset, this perspective relies on the assumption that innovation cannot emerge from a “laissez faire” situation, or at least not in a complete and satisfactory way. Even before questioning the relevance of the patent system, it is important to consider the necessity, or lack thereof, of promoting innovation. This does not mean questioning the social utility of innovation, although technology divagations can sometimes lead us to consider some innovations to be more harmful than beneficial to society and call for a kind of precautionary principle. Without denying this problem, it is not the focus of our reflection here. Rather, we intend to discuss why public intervention would be necessary and, more particularly, if patents are in fine a more or less appropriate mode of regulation.

The discussion has two stages. In a first stage (section 1.2), the traditional approach to the role of patents to incentivize innovation is presented. By articulating the non-rivalry and non-excludability properties of patents in the use of ideas and inventions that result from them, it is shown that a lack of private incentives for innovation affects the economy. The emergence of the patent as an intellectual property right in response to this lack is discussed. The specificities ...