Patents

2The Imprimatur of Patent Offices in the Face of Reforms

2.1. Introduction

Over the past four decades, the patent system has undergone major changes in line with the expansion of the field of patentability and the strengthening of the protection conferred. These changes have led certain commentators to consider that there is a risk of over-protection (Beckerman-Rodau [BEC 11]) related to the stacking of intellectual property rights (patents, copyright, brands, designs and models) and network effects in certain industries like software. According to some economists, this risk would lead to a “tax” on innovation (Jaffe and Lerner [JAF 04]) and would be indicative of a crisis in the patent system, as illustrated by the increase in litigation and the rise of entities known as “patent trolls” (Bessen and Meurer [BES 08], Burk and Lemley [BUR 09])¹. Although most agree about the necessity of reforming the patent system (FTC [FTC 03], Jaffe and Lerner [JAF 04], Bessen and Meurer [BES 08], Burk and Lemley [BUR 09])², the debates are undecided about the direction and practical aspects of these reforms.

In response to critiques concerning the patent system and proposals to abolish it on the basis that no argument proves that the patent system is significantly profitable for innovation (Boldrin and Levine [BOL 08]), we have observed a weakening movement in patent law for a few years now. This is the result of a reform to the patent system in the United States (the America Invents Act ...