"Term"inal Illness: Curing the Patent Term by Empirically Analyzing Patent GlobalizationExpressO (2011)
AbstractPatent globalization has arrived. Procedurally, the Patent Cooperation Treaty (PCT) makes it easy for firms to seek patent protection in many countries around the world. Substantively, the TRIPS Agreement has upped the level of patent protection available in these countries. To remain relevant, patent law in the United States must adapt to this patent globalization, in part by recalibrating the duration of the patent monopoly. I tackle this issue by asking whether we should reduce the patent term in the United States to compensate for the enhanced potential for patent exclusivity outside the United States. Specifically, I develop a new metric which I call the “global patent term” (GPT) and use it to analyze the patenting strategies of three firms in three very different industries – Pfizer, the pharmaceutical giant; International Paper Company, a worldwide leader in paper products; and UNISYS, a large technology services provider. Based on the results of these three case studies, I conclude that patent globalization discriminates. Some firms like Pfizer benefit substantially from the globalization of intellectual property, reaping higher “rewards per invention” in 2009 than they did in 1995, before the TRIPS Agreement took root. Other firms, such as International Paper and UNISYS, did not participate in the global patent revolution to nearly the same extent. Since patent globalization rewards firms in some industries but not others, an across the board patent term reduction in the United States would likely suppress the incentive to innovate at firms that rely primarily or solely on the U.S. patent system to protect their inventions. To firms such as these, patent globalization is not an adequate substitute for long patent protection in the United States. The fact that patent globalization discriminates based on technology suggests that we should seriously consider implementing technology-specific patent terms. For industries in which patent globalization has really made a difference, such as the pharmaceutical industry, the increased “reward per invention” outside the United States should offset any innovation incentives lost by shortening the duration of U.S. patents. For industries that depend on patent exclusivity in the United States but not elsewhere, a longer U.S. patent term may provide the optimum innovation incentives.
Publication DateFebruary 15, 2011
Citation InformationWesley D Markham. ""Term"inal Illness: Curing the Patent Term by Empirically Analyzing Patent Globalization" ExpressO (2011)
Available at: http://works.bepress.com/wesley_markham/3/