Can patents be morally justified?

1. Can patents be morally justified? Prof. dr. Sigrid Sterckx Vakgroep Wijsbegeerte & Moraalwetenschap UGent

2. Introduction • Patentability requirements: novelty – nonobviousness – applicability – sufficiency of disclosure • Product patents vs. Process patents • Limitation in time and space

3. Morally justifiable? • Natural rights • Distributive justice • Utilitarian (economic) justification

4. The natural rights argument • Man has a natural property right to his ideas • Using an idea without the authorisation of the ‘owner’ = theft • Locke’s labour theory of property (1690)

5. Locke’s theory • 2 basic propositions: The preservation of mankind is a fundamental law of nature → Man has a natural right to the means necessary for his preservation God gave the Earth to Mankind in common, but there has to be a way to appropriate the fruits of the Earth • Everybody has a property right over his own person → also over his labour → also over the things he mixes his labour with

6. Locke’s theory • BUT: 2 proviso’s: “enough and as good” “no waste” (nobody should appropriate more than he can use) • Is Locke’s theory applicable to intellectual property???

7. Locke’s theory & IP: Problems • Difference between the value of the object of the labour and the value of the labour • ‘Intellectual objects’ stem from ideas of others • Can (possibilities offered by) ideas be wasted? Do patents induce such waste? • Do patents leave “enough and as good” for others?

8. Distributive justice • Fairness requires that inventors be rewarded • Free riding is unfair • Patents are justified because they protect inventors against ‘free riders’

9. Distributive justice: problems • What should be rewarded?? The extent of the effort or the value of the result? • Fairness of not rewarding people who work in ‘non-patentable fields’? • Fairness of unequal distribution of / access to information (caused by patents)? • Are patents an unnecessary (‘extra’) reward? • What about other kinds of rewards?

10. Distributive justice: problems • Research is a cumulative and collaborative process → why only reward those who ‘take the last step’? • Independent inventors are treated unfairly • The reward offered by patents is hardly ever proportional (no link between social usefulness of an invention and ‘length’ and ‘width’ of the patent) (unduly broad patents are frequently granted)

11. The utilitarian argument • “He who has no hope that he shall reap will not take the trouble to sow” (Bentham) • 2 arguments: Incentive to invent/innovate (necessary in view of the ‘public good’ character of information → market fails) Incentive to disclose (social contract)

12. Utilitarian argument: problems • The market failure may be addressed in other ways • Patents limit the dissemination and use of inventions (‘patent paradox’) → the lack of access can ‘cancel out’ the advantage brought by the incentive • Only inventions which were done exclusively or earlier due to the availability of patents can be put down to the patent system, whereas access to all patented inventions is restricted

13. Utilitarian argument: problems • ‘Incentive to disclose’ → patents as an ‘altruistic alternative’ for trade secrets? Often difficult to keep inventions secret! (and requirement of sufficiency of disclosure is often not taken seriously by patent offices) • Various costs of the patent system! • Does the patent system, rather than preventing underinvestment in R&D, encourage overinvestment? • Very little empirical research!

14. Utilitarian argument: problems “The modern faith in intellectual property does not seem likely to be shaken soon, primarily because that faith is supported by such evidence as high levels of innovation, high levels of investment in innovation, and the concomitant prosperity. The intellectual property laws may not have been responsible, but most observers believe that those laws have played a part. If intellectual property law is stifling research or steering research in the wrong direction, our collective faith may keep us from recognizing it.” Samuelson, Pamela, “Innovation and Competition: Conflicts over Intellectual Property Rights in New Technologies”, in Weil, Vivian & Snapper, John W. (eds) (1989), Owning Scientific and Technical Information – Value and Ethical Issues. New Brunswick: Rutgers University Press, p. 179.