Patent Law in Crisis? Functions and Limits of the Patent System in a Globalised World

Setting up a new business may be really tough. Let's assume you want to produce and market DVD-players. You can not ignore the fact that the DVD technology is protected with patents. More than 850 patents owned by some 10 patent holders around the world, such as Philips, Sony, Toshiba, Hitachi, etc. In order to be on ‘the safe side’, you will have to negotiate individual licenses with all those 10 patent holders in order to use these technologies. It goes without saying that doing so costs a lot of time and money. Or, imagine, you want to produce rice, which has added value, more in particular rice which is enriched with vitamin A, and hence, has a yellowish colour. You will soon figure out that this rice technology is covered with some 70 patents, held by a bunch of agricultural firms, such as Monsanto, Novartis and Bayer. In order to be on ‘the safe side’, you will have to negotiate individual licenses with all those patent holders in order to bring your rice to the market. These examples clearly illustrate a twofold trend in patent law. First: proliferation and explosion of patents. More and more patents are being applied for - and - granted. Second: expansion of patentable subject matter. More and more matter qualifies for patent protection: not only mechanical, inanimate items can enjoy patent protection, but now also living material, such as plants and animals. Thoughtful observers conclude that patent law is "in crisis", "in turmoil". Patents no longer act as instrument for fostering innovation by generating incentives. Rather, patents are tools hindering the coming about of a knowledge based economy and the ‘open society’. The present paper offers a more fundamental analysis of these trends and reveals some limits of patent law. The present paper claims that these limits relate to the regulatory function and the symbolic function of current patent law