Journal of Intellectual Property Law & Practice Advance Access originally published online on April 9, 2008
Journal of Intellectual Property Law & Practice 2008 3(6):402-408; doi:10.1093/jiplp/jpn060
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© The Authors (2008). Published by Oxford University Press. All rights reserved
Duration of patent protection: does one size fit all?
Legal context: Consistent with the TRIPs Agreement, the patent system has a ‘one size’ approach to duration of protection, in that all inventions are entitled to the same maximum period of grant: 20 years. This paper seeks to answer the question whether this ‘one size’ approach fits all inventions.
Key points: The article determines if the present system of patent protection is within the bounds of what might be considered optimal, when account is taken of the economic theory on duration, the real world practices of patentees regarding renewal of their patents, and the legal features of the current system. It finds that the system on duration of patent protection currently in operation matches closely to what would be considered optimal.
Practical significance: These considerations are relevant to practitioners advising their clients on duration of protection and renewal rates, and to policy makers concerned with optimizing the patent system.
Key Words: The patent system of all developed countries has the same fixed maximum duration of protection. • The authors determine what is the optimum duration of patent protection and then compare that optimum duration with the duration of protection that the current patent system provides. • The article considers the strategic issues and legal considerations that face patentees in theory and in practice to access the adequacy of the current one size system of patent protection.
Correspondence: * Corresponding author: IPRIA, Law School building, University Square, University of Melbourne, Victoria, 3010, Australia. Tel: +61 3 8344 1125. Fax: +61 3 9348 2353. Email: f.rotstein{at}unimelb.edu.au
Davies Collison Cave Professor of Intellectual Property in the Melbourne Law School, and founding Director of the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne, Australia. This article is based on a paper presented at the Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI) 40th Congress, Gothenburg, 11 October 2006. The helpful comments on that paper by various Congress attendees is gratefully acknowledged (A.F.C.). Research Fellow, Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne, Australia (F.R.).