Disrupting the Traditional Patent System: The Emergence of New Models

Özet

The Open Source and Free Software movements in copyright have, in their own way, challenged the tradi­tional exclusive rights — based system. However, when it comes to patents, it would appear that the traditional model — underpinned by the assumption that for an innovation to be economically viable, an inventor must be able to exclude others from making, using, or selling his innovation — still prevails. The common understanding of the encouragement of innovation providing the necessity for strong exclu­sive patent rights is nevertheless nuanced by the recent development of atypical models. The models that will be discussed in this paper do not challenge patents per se (i.e., a right to prevent anyone from making and using the patented invention), but rather the way patents are being used. Relying on a growing literature on so-called “open patents” and on selected examples (i.e., patent pledg­es), this proposed paper will investigate recent “openings”, so to speak, of exclusive intellectual property rights (IPRs) and how they affect our understanding of patents as well as the legal instruments currently available to apprehend such new models.