Senin, 27 April 2009

A Proposal of Patent Ownership Mechanism based on its Beneficial Value and Historical Perspective

Summary :
Intellectual Property is often quoted as a major factor for avancements of technology today. There is a strong trend that its role becoming stronger at a global world economy and at a borderless business strategy. The basic idea of Intellectual Property is laid on the beliefs that the first party developing an useful art must be granted a previledge ownership of the art. The concept covers published inventions (ie. patent system), published arts (ie. copyright) or trade secrets[Pat]. The former two systems are formalised in order to promote and to share process of innovation in the community, otherwise the innovator would keep their ideas secret to the rest of the world as in the latter case. The patent system was first formalized in England in the 1623 "statue of monopolies"[fre]. However, Copyright, or authorship, notion was known from ancient times. In contrast to todays practices, copyright act was in the purpose of government cencorship by granting printing right to favored individuals[Mur94,Mea99]. However, we strongly believe that the concept of ownership of intangible goods, such as Intellectual Properties, is akin to the concept of ownership of tangible goods, such as land[Ray99]. It should be noted that, Intellectual Property ownership is very important such that it is stated in the First Amandement of USA. As stated in previous paragraphs, Intellectual Property Protection, notably patent protections, encourages innovators to disclose their inventions or advancements in technology. The standard economic rationale for patents is to protect innovators from imitation of free riders, and thereby give them incentive to incur the cost of innovation. Conventional wisdom holds that, unless would-be competitors are constrained from imitating an invention, the inventor may not reap enough profit to cover that cost [BM00]. It is reported that recent economic growth in US economy driven by high-tech industry is accounted as results of a strong industry partnership and a proper Intellectual Property policy started at Reagan administration [Hay96,Sch98].
However, as an evolving system, current Intellectual Property Right has dark side of its own. In the origin, the concept of Intellectual Property gives the innovator a monopolistic right to utilize the innovations, including denying others utilize his property. As a part of business strategy, this right is often abused for preventing fair use of technologies [Les99]. It is reported that most of patents in hardware industry is not novel therefore invalid[TS73,Aha]. Although most of patententing activities are primarily defensive[N97], there are some patents registered only in expectation for future profits 1 thus can be considered as offensive patents.
Broad patents, such as business model patents or software patents, may also become obstacle for technology advancements. Since the coverage of such patents is not obvious, thus other innovators are
1 These kinds of patents are usually not truly technical advancements but non obvious idea with abstract implementations.
always worriying if they become objects to be sued later for patent infrigements [Sme]. Due to the fact of a huge number of patented inventions, searches of related patents is cost-prohibitive, time consuming if not impossible. To the extreme, this kind uncertainties may turn to be obstacle for further technological achievements. Furthermore, communities
2 with less patent portfolio
3 are economically and politically weak against parties with numerous patent portfolio. Having examined the weakness of current patent system, it is important , especially for communities with less-patent portfolio, to make a patent system which is more just and suited for their future. This paper is trying to propose a new concept of "patent ownership"
4 which is suited for an environment
where the gap of patent porfolio among parties is wide. The proposal is base on history of Intellectual Property Right especially of West and Islamic world.
The Intellectual Property right is not known to be exist in Islamic era. However many scolars are in position that the ownership of an intangible goods is not against islamic jurisprudence. The logic used
in our research is firt we examine the origin of concept of the current patent system. Then we make an analogy
5 to similar conditions in islamic history. Then we propose a solution for patent ownership. Then we are going to compare the solution and current patent system.
J. Bessen and E. Maskin's research revealed that in the dynamic world model, patent systems has no usefullness for technology advancements[BM00]. And the rapid growth of hi-tech indusstries is mostly an effect of almost-no-patent environment, a result of cross-licensing entire patent portfolios and close partnership among companies. J. Bessen remarked that in a world without a patent system, innnovation will probably be more accelerated[BM00]. There are several proposals for improvements of current patent systems. US Congresman Berman's proposal for obvious patent, Jeff Bezos of Amazon for short termination of business patens are among the few. However, the proposals are still partial and not in touch of the main roots of problem "the
ownership notion of the system".
Our proposed patent ownership is based on the following concepts:
Alloh as the absolute owner and theacher of knowledge (QS 96:4-5)
Everything must be utilized for the sake of entire humanity.
National land reform at the time of Caliphs Umar and the islamic taxation (zakah).
Highlight of proposed improvements:
Low entry barrier for patent registration
Ecouragement for patent sharing:
A high tax for licence revenue
Patent taxation according to its broadness and usefulness
Some mechanisms to prevent unfair use of patents, i.e. Futuristic patents.
Comparison of proposed and current patent system.
Contribution of this paper:
Understanding of the root of current patent system
A new consideration for patent ownership and ownership termination
The idea in this paper can be further extended and applied as a ground of patent law and
science advancement policy in developing country.
2 The community may refer to a company or a country
3 A common symptom for developing or less developed countries
4 Especially in in order to minimize the negative effect of current patent system
5 This known as qiyas in Islamic Law

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