Incentive theory

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The incentive theory is a positive theory to justify the state granting of a - time-limited - exclusive right in the form of a patent to the inventor (or his legal successor ), § 6 Patent Act (PatG). The incentive theory is now considered to be the most important justification theory alongside the reward theory .

Need to justify patent grant

A justification for the granting of patents is generally considered necessary because monopolies are fundamentally in conflict with unhindered competition between market participants, one of the most important components of the free and social market economy that has been in place in the Federal Republic of Germany since Alfred Müller-Armack and has been generally recognized . Monopolies are an obstacle to free competition because they give an individual market participant, namely the monopoly owner, an advantage over other market participants.

Objective of the incentive theory

The incentive theory is based on similar considerations as the reward theory : inventions and their industrial exploitation are necessary for desirable industrial progress . Without inventions, in a functioning competition, imitators (possibly more economically potent) would quickly be on the scene, preventing the inventor or patent applicant from being able to bring in even the costs incurred for his invention. If the patent applicant (inventor) did not receive a greater profit than that which - without a patent - could result from the purely competitive exploitation of the invention, it would have to be feared that the number of inventions would decrease sharply. Conversely, however, it means an incentive for the patent applicant (inventor) to intensify his inventive efforts or his patent application activity if his profit expectations are increased by the prospect of an exclusive right in the form of a patent.

The idea of ​​the incentive theory is said to go back to Abraham Lincoln , who said: "The patent system has added the fuel of money advantage to the flame of genius."

In order to do justice to reality, however, it must be noted here that a patent applicant may in no way count on a subsequent implementation of his exclusive right. Rather, the realization of profit depends crucially on the known imponderables of the market, the economy and the overall political situation. This profit risk is in addition to the risk of even being granted a patent for a patent application.

criticism

Just as against the reward theory, one could also argue against the incentive theory that a patent system based on exclusive rights does not necessarily have to follow from it. Rather, the inventor could be encouraged to a sufficient extent (to further inventive activities) through appropriate recognition and - possibly - a claim for remuneration from the state. However, it would turn out to be problematic to determine the criteria according to which the entitlement to remuneration should be determined in each individual case.

The critical arguments can, however, be countered by the fact that patent protection - even if its incentive for immediate invention activity were to be assessed as low - is for the innovation so categorically demanded by modern competition theory , i.e. H. the development process from invention to production and marketing is of the utmost importance. Because the technical development of an invention usually requires 10 to 20 times greater expenditure than the achievement of the invention as such. Now that it has to be assumed that the vast majority of potential or current inventors are employed as engineers in companies, the critics must be asked whether companies would be able or willing to accept such a cost risk for innovations if the already not completely certain profit expectations could be reduced completely to zero by imitation that is permissible at any time.

Comparison: incentive theory - reward theory

The above statements show that there is actually no essential difference between the two theories. Both theories are based on giving the inventor a "reward" for a social act, namely the publication of his invention. While the reward theory here concentrates entirely on the achievement of creation, which means a strong emphasis on the idea of ​​justice, the incentive theory is more future- oriented , whereby it gives priority to economic aspects over purely considerations of justice. Because even according to the incentive theory, only a completed invention can be rewarded: The purpose of this reward is to motivate the inventor to future inventive activity. In particular, the fact that today more than ever the demand for future-oriented cutting-edge technology is made of the economy speaks in favor of giving preference to the "modern" incentive theory over the reward theory.

See also

literature

  • Krasser, R., Textbook of Patent Law , 4th Edition, Munich 1986
  • Müller-Armack, A., Economic Management and Market Economy , Hamburg 1947
  • Müller-Armack, A. u. a. (Ed.), Contributions to the Order of Economy and Society , Cologne 1966

Web links

Individual evidence

  1. ↑ See Bernhardt, W., The importance of patent protection in industrial society ; Cologne, Berlin, Bonn, Munich 1974, p. 15
  2. ↑ Machlup, F., The economic foundations of patent law , in. GRUR Int. 1961, p. 26
  3. ^ A b Dietrich Scheffler, The German Patent System and Medium-Sized Industry. A theoretical and empirical investigation , (Diss.) Stuttgart 1986, p. 163 ff.
  4. ↑ So analogously Hirsch, H., patent law and competition regulation , in: WuW 1970, p. 99 ff
  5. ↑ Bußmann, J., Patentrecht und Marktwirtschaft , in: GRUR 1977, p. 121 ff.
  6. ^ As applicable Bernhardt, W., The importance of patent protection in industrial society ; Cologne, Berlin, Bonn, Munich 1974, p. 16