Vanderbilt Law Review

Article Title

Patent Policy Innovations: A Clinical Examination


Josh Lerner


In recent years, many of the policy discussions about the patent system have focused on the harmonization of national systems. On the domestic front, the dispute has centered on the question of whether the United States should honor commitments made in bi- lateral agreements with Japan to remove idiosyncratic features of its patent system. In particular, legislation to require the publication of pending patent applications and to grant awards to the party that is first to file for an award (as are the practices in most nations) have been fiercely debated in the past few congressional sessions. In the developing nations, the requirements for minimal levels of patent protection in the Uruguay Round of the General Agreement on Tariff and Trade have triggered much controversy.

But a related question has received much less attention: How do patent policy innovations originate? Given the nature of new technologies and changing economic conditions, there may be a need for policy innovations, which might take the form of novel classes of intellectual property protection or adjustments to existing provisions. The sources and nature of these policy innovations, however, have been little discussed by policymakers. This Paper represents an effort to begin to address this gap. Two considerations may have deterred earlier researchers from seeking to empirically explore patent policy innovations. First, the complexity and opacity of the law precludes the ready identification of policy shifts. Countries have many levers with which to affect the strength of protection, to favor domestic or foreign applicants, and to give discretion to applicants and patent holders. Many apparently innocuous shifts-such as the creation of a centralized appellate court for patent cases in the United States in 1982--have substantial implications. Thus, even if a country undertakes a substantial innovation in its patent policy, it may not be readily identifiable to researchers.

Second, many factors determine the strength and structure of patent protection. As my earlier work has shown, among these factors are shifts in the relative economic standing of the nation, the nature of the political system, and the information problems in the economy. Furthermore, external political pressures may play a significant role in shaping policies. Thus, discerning what patent pol- icy shifts represent policy innovations, rather than responses to internal or external pressures, is not always simple.

In this Paper, I overcome these barriers by examining several patent policy innovations in depth. I focus on three cases that meet a number of criteria, explained in detail below, which are drawn from the sample of sixty countries over 150 years that I have studied as part of an ongoing project on patent policy. (The project is summarized in the next Section of the paper.) The careful screening of examples and a clinical approach allow me to overcome the barriers discussed above.