Reward theory

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The reward 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 reward theory is now regarded as the most important justification theory alongside the incentive 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.

The inventor's reward for his social work

According to the reward theory, the inventor (or his legal successor) has an advantage for having rendered a useful service (a social service) to the general public through his invention , the patent application for the same and the associated disclosure of the invention in accordance with Section 31 PatG (“Wages”) by the state granting him a patent and thus a temporary exclusive right to the invention. In short, the inventor deserves the patent as recognition and reward for his intellectual work.

Historical origin of the reward theory

The reward theory can be traced back to the English philosopher and economist John Stuart Mill . Although he always turned against monopolies, he nonetheless advocated patents as a justified reward for the inventor. The idea of ​​a reward theory expressly formulated by Mill for the first time is based on the basic principle of fairness and is specifically oriented towards the prevailing conditions in competition practice: In order to actually be able to realize his fair “reward” in the form of profit, the inventor should use the the exclusive right granted him a sufficient lead over competitors (imitators). Machlup sees the basic idea behind the reward theory that the patent system can create a functioning competition.

criticism

Critics of any patent protection could object to the reward theory that someone does not have to be rewarded for being the first - more or less by chance - to reveal a technical idea that actually sprang from the general knowledge of society. One could also counter the reward theory by stating that a patent system based on exclusive rights does not necessarily have to follow from it. Rather, it is sufficient to allow the inventor to be recognized and to be entitled to compensation 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 critics of the reward theory must also be countered with the fact that the inventor, after he has made his idea available to the general public by formulating and filing a patent application and disclosing it (after 18 months), can by no means be sure that he will receive his "reward “In the form of a (granted) patent. Because, even if the inventive idea meets the requirement of novelty, it must - in addition to commercial applicability - also have " inventive step ", i.e. H. "Based on an inventive step", Section 1 ( 1 ) PatG. In practice, it is primarily the latter legal requirement that leads to the fact that only about a third of all patent applications submitted are finally granted a patent after the (strict) patent examination procedure has been completed.

See also

literature

  • Rudolf Kraßer: Textbook of patent law. 4th edition, Munich 1986
  • Alfred Müller-Armack: Economic management and market economy. Hamburg 1947
  • Alfred Müller-Armack et al. (Ed.): Contributions to the order of economy and society. Cologne 1966

Web links

Individual evidence

  1. ↑ Dietrich Scheffler: The German patent system and medium-sized industry - a theoretical and empirical investigation , (Diss.) Stuttgart 1986, p. 159 ff.
  2. ↑ Friedrich-Karl Beier: The conventional patent theories and the socialist conception of inventor rights , in: GRUR Int. 1970, p. 2.
  3. ^ John Stuart Mill : Principles of Political Economy , London 1848, p. 2.
  4. ↑ Wolfgang Bernhardt: The importance of patent protection in industrial society , Cologne, Berlin, Bonn, Munich 1974, p. 9.
  5. ^ Fritz Machlup: The economic foundations of patent law , Weinheim 1961, p. 174 ff.
  6. ↑ H. Hirsch: Patent Law and Competition Regulation, in: WuW 1970, p. 99 ff.
  7. ^ J. Bußmann: Patent Law and Market Economy. In: GRUR 1977, p. 121 ff.
  8. ↑ Scheffler, (Individual Ref. 1), p. 162.
  9. ^ So Kurt Bartenbach: The inventor remuneration for used, not patented service inventions. In: Kurt Bartenbach u. a .: Trends in commercial legal protection. Festschrift for the 20th anniversary of the VVPP, Cologne 1975, p. 132.