Publication theory

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The publication theory - also called disclosure or contract 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).

Need to justify patent grant

It is generally considered necessary to justify the granting of patents 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 . 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 publication theory

The publication theory sees an exchange contract between the inventor (or patent applicant, who can also be the legal successor of the inventor) and the general public in that the inventor (or patent applicant) gives up his possession of secret invention knowledge in order to obtain a time-limited exclusive right for the commercial Utilize this knowledge to obtain. The publication theory is based on the (justified) concern that potential patent applicants could keep their technical knowledge secret and that it could thus be lost to the general public forever.

Objectives

The publication theory is also based on the (optimistic) idea that the inventions that become marketable legal assets as a result of the state granting of an exclusive right are used more intensively by specialized market participants through licensing . The licensing options viewed positively by the market would also initiate further innovations . It is true that patenting would initially restrict the general usability of inventions and thereby reduce general welfare. This negative effect would, however, be more than compensated by an increased motivation for future invention activities - which the publication theory optimistically assumed - so that ultimately - at least in the long term - the economic benefit of the patent system outweighs.

The question of whether there would be inventions in sufficient quantity and quality even without the hope of profits benefiting from an exclusive right is of course not posed by the publication theory.

criticism

Just like the reward theory and the incentive theory , one could also counter the publication theory by saying that a patent system based on exclusive rights does not necessarily have to follow from this theory. Rather, the inventor can be sufficiently “rewarded” or encouraged 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.

In response to the critical arguments, however, it can be replied that patent protection - even if its incentive for immediate invention activity were to be assessed as low - for the innovation so categorically demanded by modern competition theory , i. 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: publication theory - reward theory / incentive theory

While the reward theory promises the inventor a “reward” in a psychologically adept form for disclosing his initially secret knowledge of the invention and the incentive theory also motivates (“spurs”) future invention activity, the publication theory offers a “sober” contract instead. It is therefore committed to the (contractual) granting of a time-limited exclusive right. The (not very tempting) prospect of having to conclude a contract for their own inventions - signaling bureaucratic effort and obligations - with the state should hardly be an incentive for the inventor or the patent applicant to undertake special invention or patent registration activities. Publication theory thus lacks the future-oriented element inherent in incentive theory and its modernity.

The publication theory thus takes a back seat to the reward theory and the incentive theory in terms of topicality and effectiveness.

See also

literature

  • R. Krasser: Textbook of patent law. 4th edition. Munich 1986.
  • A. Müller-Armack: Economic control and market economy. Hamburg 1947.
  • A. Müller-Armack et al. (Ed.): Contributions to the order of economy and society. Cologne 1966.

Web links

Individual evidence

  1. ^ F. Machlup: The economic foundations of patent law. Weinheim 1962, p. 21.
  2. ^ Dietrich Scheffler: The German patent system and medium-sized industry - A theoretical and empirical study. Dissertation. Stuttgart 1986, p. 166 ff.
  3. ^ As in H. Hirsch: Patent Law and Competition Rules. In: WuW . 1970, p. 99 ff.
  4. ^ J. Bußmann: Patent Law and Market Economy. In: GRUR . 1977, p. 121 ff.
  5. ^ As applicable W. Bernhardt: The importance of patent protection in industrial society. Cologne / Berlin / Bonn / Munich 1974, p. 16.