Patents for Open Innovation
The post-Internet era has largely affected commercial firms’ innovation processes. The complexity and cumulative nature of emerging technologies under the post-Internet era have made commercial firms reevaluate the innovation process and increased the role of individual innovators. As such, the current patent system in the United States has become increasingly outdated by failing to take into account the new use of patents and motives of innovators. Although commercial firms and the patent system alike have implemented new procedures in light of the complex technologies, they still fall short. Patent reform is necessary to overcome such short-comings. In light of recent changes, this article proposes a new utilitarian theory for patents: the incentive to share, a new utilitarian theory that addresses the current innovation landscape, key players, and economic rationales of the patent system. Under the incentive to share theory, innovators can use patents as inclusive rights to engage in open innovation. The proposed inclusive patents allow anyone who shares its patented inventions practicing and innovating on the patented invention while being enforced defensively to deter patent litigations and encourage settlements by using the patents as legal bargaining tips for cross-licensing. Patent owners of such patents are rewarded with the freedom to operate and innovate through a compulsory against blocking patents. The article urges for a reevaluation of U.S. patent rights in light of new patent uses. It views patent protection as a property right with the right to use and share their inventions, rather than merely a tool to exclude others. The proposed theory better embraces the open source philosophy that serves as a foundation to the current technological landscape.
Prof. Toshiko Takenaka is a Washington Research Foundation/W. Hunter Simpson Professor of Technology Law at the University of Washington School of Law, Seattle, USA., and a professor of law at Keio University Law School, Tokyo, Japan and Of Counsel at Seed IP Law Group. She has received a visiting professorship to teach a course at Technical University of Munich (TUM) 2016-2018 fall semesters from the state of Bavaria and received the title of TUM Ambassador from the University President in December Advanced Study and Research on Intellectual Property (CASRIP) at the University of Washington School of Law between 2003 and 2015.
She has published numerous articles and books on US, European and Japanese patent laws and is the main author of the book entitled Patent Enforcement in U.S., Germany and Japan (Oxford University Press, 2015.) Prof. Takenaka is currently a member of the board of editors for Journal of Intellectual Property Law and Practice, Intellectual Property Committee within Japan’s Ministry of Economy, Trade and Industry’ Industrial Structural Council and patent examination standard committee at Japan Patent Office.
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