Circumvention theory

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The circumvention theory is a positive theory belonging to patent law to justify the state granting a - time-limited - exclusive right in the form of a patent to the inventor (or his legal successor ), § 6 PatG.

Need to justify patent grant

A justification of the granting of a patent is generally considered necessary because a patent gives its owner an exclusive right , Section 9 sentence 1 PatG, which is a monopoly-like right. Monopolies, however, basically mean a contradiction to 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 . Monopolies are an obstacle to free competition because they give an individual market participant, namely the monopoly owner, an advantage over other market participants.

Basic idea of ​​the circumvention theory

The circumvention theory is based on the thesis that when a manufacturer is granted a patent on his (inventive) product (or process), competitors are encouraged to look for workarounds because they do not recognize the patented features of the foreign product (or process) imitate without permission from the patent holder. Often it is also possible to develop a suitable substitute product (or process) that circumvents the patented solution. ( "Necessity is the mother of invention.") It often happens that the Substitutlösung exceeds qualitatively the patented subject matter and - with sufficient inventiveness even turn leads to a patent grant -. This, in turn, can force the first patent holder to improve their own solution (or to apply to the second patent holder for a license ). The described initiation effect of patents - viewed as a whole - brings about an increase in the level of the relevant state of the art which benefits the general public.

Content character of modern patents

The described basic idea of ​​the advocates of the circumvention theory, which has been corroborated by practical experience over decades, is based on the knowledge that modern technology - with relatively rare exceptions - generally does not progress in large leaps, but in many small steps, building invention on invention which - as the IT industry is currently showing - can follow one another very quickly. The time of the great "pioneering inventions" (well-known example: the electric incandescent lamp, invented by Th. A. Edison ), which could not be easily avoided with equivalent substitute products, should be essentially over. Those "pioneering patents" (which have become extremely rare) cover a wide range of product variants, so that the patent proprietor's competitors hardly manage to circumvent such a patent. The objects of the vast majority of current patents, on the other hand, are predominantly only more or less successful improvements of largely mature products (or processes). This can be, for example, the replacement of a certain material with other materials that are less expensive, easier to work or process, more environmentally friendly, reusable (so-called recycling ), etc., or the exchange of individual sub-elements for others, especially more cost-effective with essentially the same technical characteristics. It is clear that a large number of workarounds are conceivable, possible and also desirable.

criticism

Critics of circumvention theory object that circumvention inventions are not optimal and therefore do not serve the market participants. Numerous unnecessarily complex and inefficient technical solutions would come onto the market. Or maybe competing companies just wanted to avoid expensive licenses. The critics, however, fail to recognize the reality described above, namely that technical progress takes place in a constant succession of comparatively small (inventive) steps and that patents seem to be indispensable for this - to generate the necessary motivational pressure.

Individual evidence

  1. ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A Theoretical and Empirical Investigation, (Diss.) Stuttgart 1986, p. 160
  2. ↑ Dietrich Scheffler, Monopoly Effect and Information Function of Patents from Today's Perspective, in: GRUR 1989, p. 799

See also

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]