Open models for patents: Giving patents a new lease on life?

• Author: Natacha Estèves
• DOI: http://doi.org/10.1111/jwip.12089
• Date: 01 March 2018
• Published date: 01 March 2018

DOI: 10.1111/jwip.12089

ORIGINAL ARTICLE

Open models for patents: Giving patents a new

lease on life?

Natacha Estèves

Sciences Po Law School, Paris, France

Correspondence

Natacha Estèves, PhD Candidate,

Sciences Po Law School, Paris, France.

Email: natachaesteves@gmail.com;

natacha.esteves@sciencespo.fr

This essay investigates the development of peculiar models

in patents: “Open patent”licenses, patent pledges, defensive

patent strategies and the like. Although using patents in an

unconventional way, these models do not dispute the very

existence of patents, but rather the way patents are being

used. These models are not entirely new—some have been

around for over a decade—but seem to find an echo with the

growing criticisms of the “broken patent system”. These

models might be able to go beyond the pro-patent/against

patent debate, by reconciling exclusive/inclusive mecha-

nisms and eventually reveal the strong plasticity of patents,

offering patents a new lease on life.

KEYWORDS

open patents, patent licenses, patent pledges

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INTRODUCTION

“A country without a patent office and good patent laws [is] just a crab and [can’t] travel any way but sideways and

backways”(Twain, 1889, p. 107). This is a modern 19th century view, expressed vividly by author Mark Twain, of the

relationship between intellectual property (IP) and innovation. Contemplating the current trends in patent law, most

countries have evidently made the choice not to be odd-walking crustaceans only moving sideways and backways, by

adopting strong patent regimes. In line with the traditional incentive theory of IP, this on-going tendency suggests that

patents are understood as the most viable option to foster innovation: a patent is an exclusive right granted to

innovators incentivizing them to innovate. With the transformation of our economies into information-based ones

driven by innovation, the task of expanding, strengthening and harmonizing patent law both at a procedural and

substantial level is deemed crucial. The rationale is invariably the same: patents promote innovation.

Yet, the classical understanding of patents as providing the necessity of having strong exclusive rights to

encourage innovation is slightly tempered and disrupted by the recent development of peculiar models. “Open

© 2017 The Authors. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd

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wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2018;21:2–14.