Toshiko Takenaka Prof., Patents for Sharing, 26 Mich. Tech. L. Rev. 93 (2019), https://digitalcommons.law.uw.edu/faculty-articles/542
Patents for Sharing
Michigan Technology Law Review
Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to operate and innovate. Individual innovators, and open source software (“OSS”) programmers in particular, have also developed a new use of copyrights: using them to share their technologies through OSS licenses. Producers of complex technologies use patents for sharing their technologies with OSS programmers and for protecting themselves from patent assertion. In light of these recent uses, this article proposes a new utilitarian theory for patents: patents as the incentive to share, with the reward of increasing the freedom to operate and innovate. It argues that both the ex ante and ex post incentive to invent theories are outdated because they fail to take into account the patent owners’ lack of control over their products in complex technology sectors. This article urges Congress to reevaluate U.S. patent rights in light of this new patent use. It reviews U.S. patents as property rights from the comparative law perspective and proposes the revitalization of the inclusive side of U.S. patents by introducing a compulsory license for blocking patents. It also proposes that the exclusive side of patent rights should be limited to private and experimental use exceptions to ensure the freedom to operate and innovate by sharing.