The changing function of patents: a reversion to privileges?

Abstract

Since its inception, patent law has had many faces, manifesting different aims and functions. The latest recalibrations of the aims and functions of patent law are striking because – at its core – patent law itself has not changed significantly in this time. This paper examines the chameleon-like nature of the function of patents, tracking historical transformations from the privilege as an instrument of trade policy, to patents as an incentive/reward to invent and disclose the invention, and the most recent shift towards viewing patents as necessary for innovation. In particular, the paper addresses whether the latest shift represents a reversion to privilege-like functions, due to the analogous focus on commercialisation, and argues that this is not the case because of the fundamental move to focusing on patentees rather than society as a whole and to seeing patents as property.