Negative patent theory

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Negative patent theory is a collective term for theses whose advocates do not recognize any justification for patent protection and thus reject patent protection. The negative patent theory is in contrast to the positive patent theories, which affirm patent protection. They are: the reward theory , the incentive theory , the publication theory , the natural law theory and the circumvention theory .

Need to justify the grant of a patent?

Granting a patent is not entirely undisputed even among proponents of patent protection. Because a patent grants its owner an exclusive right , § 9 sentence 1 PatG, which is a monopoly-like right. Monopolies, however, 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 effect and generally recognized in the Federal Republic of Germany since Alfred Müller-Armack . Monopolies hinder free competition because they give an individual market participant, namely the monopoly owner, an advantage over other market participants. Supporters of positive patent theories (see above) therefore generally consider it necessary to justify the granting of a patent.

Historical origins of negative patent theory

The historical roots of a negative attitude towards patent protection go back to the early stages of the German patent system in the first half of the 19th century: When (after the very first beginnings in the feudal system of privileges of the 14th century) Prussia was the first to leave the German territories in 1815 created a patent law, the idea of ​​patent protection was initially carried by a wave of enthusiasm. At the same time, however, the era was also shaped by the freedom of trade that had just been achieved , with which German economists soon found it an incompatible contradiction to grant inventors patent rights. As a result, in 1868 under Bismarck , the patent system was completely abolished, which almost inevitably led to the migration of numerous German inventors abroad. This ultimately led to a significant economic decline in the German states compared to other European states, especially England. The fact that the first uniform German patent law finally came into effect - in 1877 - was thanks to the insight, flexibility and willingness to compromise on the part of politics and business representatives.

The more recent (in the first half of the 20th century) spreading neoliberalism took up the mercantilist ideas of the 19th century, propagated a competition theory of polypol competition with completely free competition and accordingly regarded patent protection as an alien element in competition. A prominent representative of this economic movement was Walter Eucken , who did not call for a complete abolition of the patent system, but at least called for its "relaxation", for example by shortening the patent term and expanding the legal institution of compulsory licenses . G. Gather, a representative of the neoliberal so-called Freiburg School, expresses himself more radically when he says: "It is sufficient to assume the disruptive, inhibiting or corrosive effects of patent legislation."

Argumentation of the negative patent theory

The basic thesis of the advocates of negative patent theory is based on the idea that patents are to be equated with monopolies. Monopolies are causing harm to consumers because they have to pay higher prices for patented products than - according to statistics - is justified in view of the costs incurred by manufacturers in developing new inventions. Moreover, as is undisputed, monopolies run counter to the idea of ​​the free market and consequently have a negative effect on competition.

The supporters of the (positive) reward theory, who claim to justify patent protection, that the inventor must receive a "reward" (in the form of a patent) for his social achievement (the invention), is countered with the thesis that someone does not have to be rewarded for that he - more or less by chance - was the first to reveal a technical idea that actually sprang from the general knowledge of society. In addition, it is often a question of "accidental inventions and insignificant contrivances" that can all too easily paralyze the zeal of others and are therefore unjust. The reward theory is also countered by saying that it does not necessarily have to result in a patent system based on exclusive rights . Rather, it is sufficient to allow the inventor to be recognized and to be entitled to compensation from the state.

The - future-oriented - (positive) incentive theory, according to which the inventor is motivated to (further) invention activities by the granting of a patent, counter the proponents of the negative patent theory with the thesis that the patent system may indeed provide certain incentives for investments in research and development . In terms of economic policy, however, it is more effective to forego a patent system and instead finance research and development through taxes . Some supporters of the negative patent theory even question an incentive effect entirely. It is rather - the other way around - that a manufacturer, as soon as he owns a patent, is no longer motivated to further improve his product.

The (positive) circumvention theory, which says that valuable circumvention solutions are initiated through patents, which then benefit the general public, is countered by the negative patent theory with the thesis that such circumvention inventions are not optimal and therefore do not serve the market participants.

See also

Individual evidence

  1. ↑ a b Dietrich Scheffler, The (unused) possibilities of the legal institution of the compulsory license, in: Journal " Commercial legal protection and copyright " (GRUR) 2003, p. 97
  2. ↑ Bußmann, J., The mandatory license under patent law (dissertation), CH Kaiseraugst 1975, p. 7
  3. ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A Theoretical and Empirical Investigation - (Diss.), Stuttgart 1986, p. 107
  4. ↑ Eucken, W., Principles of Economic Policy, 5th edition, Tübingen 1975, p. 269
  5. ^ Gather, G., Reform der Patentgesetzgebung ?, in: ORDO-Jahrbuch für dieorder der Wirtschaft und Gesellschaft, Vol. 2 (ORDO II) 1949, p. 271
  6. ^ F. Machlup: The economic foundations of patent law. Weinheim 1962, p. 18.
  7. ^ H. Hirsch: Patent Law and Competition Rules. In: WuW 1970, p. 99 ff.

literature

  • Kraft, A., Patent and Competition in the Federal Republic of Germany, Cologne, Berlin, Bonn, Munich 1972
  • Kaufer, E., Patents, Competition and Technical Progress, in: Mestmäcker, E.-J. (Ed.), Commercial Law and Economic Policy, Vol. 14, Bad Homburg vdH 1970, pp. 125 ff
  • Gather, G., Patents, Monopolies, Positions of Power (Diss.), Freiburg i.Br. 1943

Web links

  • Patent theory [1]
  • Intellectual property law - social impact [2]
  • Patent Theories - Forum: Patent [3]