The Economics of the European Patent System: IP Policy for by Dominique Guellec PDF

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Sample text

The Commons fought back for more than one century after the adoption of the statute before they could actually have the patent jurisdiction passed to common law courts which could revoke patents granted by the Crown. As a result, the Crown progressively lost control of the system, which then passed to courts. On that basis, a legal doctrine started evolving, which put emphasis on the interest of the patentee and of third parties, instead of the state, which defined what the rights and obligations of the patent holder are in a competitive context.

Patents could be revoked by the State itself, or simply superseded by the later issuance of other patents to competitors having invented superior technology. The patent system was born under mercantilist auspices. The role of patents was not to support competitive markets, but to strengthen the economic and technological foundation of the State. However, in order to reach this objective, the Mercantilist State had to rely on a market-type of incentive. Attracting foreign craftsmen and supplementing existing mechanisms (notably guilds) for encouraging domestic innovation were the leverages for increasing the national stock of technology.

The French model was extremely influential in the nineteenth century, before recessing in the twentieth century: practically all European and most of the Latin American patent laws issued in the nineteenth century were modelled on the French law. In the United States a patent system was established by the patent act of 1790, early after independence, with a basis in the Constitution (1787), which famously states that: ‘The Congress shall have Power . . ’ (Constitution of the US, Article 1, section 8, clause 8).

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