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  • Writer's pictureWinston Schultze

Fundamental shift in technology and intellectual property law

As technological developments increasing around the globe—even as the patenting of human genetics comes under serious discussion—countries, companies, and researchers find themselves in conflict over intellectual property rights (IPRs). Robots, drones, artificial intelligence, quantum computing and emerging technologies are changing the legal landscape in the intellectual property world.

About a hundred years ago, the significant inventions of the 20th century were vacuum cleaners, automobiles, disposable razors, radios, and the telephone. All of them are mechanical devices with physical existence. But the technology and economic development have taken a big leap in the 21st century, with Artificial intelligence and knowledge of skills being the key ingredients. This fundamental shift in technology is rapidly making the current system of intellectual property rights unworkable and ineffective.

What is the problem

Today, it is more important than ever to protect intellectual property rights and more challenging to do so.

To understand why consider this case: a physician noticed the relationship between the elevated level of a particular human hormone and a syndrome. He was awarded a patent for this observation, even though he thought the test had too many false positives to be useful.

But later developments showed that if his test were used along with two others, they would accurately forecast that disease. So today, the physician is suing to get a $9 fee from every laboratory that uses his part of the test. If he wins, the cost of testing will more than double.

Should the physician who just noticed how the hormone works get some intellectual property rights? Probably. But they should not be the same kind of rights as those granted to someone who invents a revolutionary invention. Noticing what an existing hormone does is simply not equivalent to a revolutionary invention.

Such distinctions are necessary, yet our patent system has no basis for making them. All patents are identical—you either get one or you don’t.

New technologies have both created new potential forms of intellectual property rights (can pieces of a human being be patented?) and made old rights unenforceable (when books can be downloaded from an electronic library, what does a copyright mean?). As a result, there is a need to rethink fundamentally what should and should not be appropriable as private property. At the same time, we need to generate new ideas and technologies to protect intellectual property rights adequately.

We also need to differentiate between fundamental advances in knowledge and logical extensions of existing knowledge, and each deserves a different kind of patent. One of the objections to the “first to file” system, used outside the United States, allows smart, knowledgeable people to guess where technology is going and file patents on things that have not yet been invented. If they guess right one out of ten times, they more than cover their costs of filing multiple patents.

What is the solution?

● There should be a single global central body without any discrimination and inequity.

● This system must strike the right balance between the production and the distribution of new ideas.

● The optimal IP system should not be the same for all industries, all types of knowledge, or all types of inventors.

● Laws on intellectual property rights must be enforceable globally, or they should not be laws.

● The system must be able to determine rights and resolve disputes quickly and efficiently.

● To accomplish society’s interest in expanding knowledge as rapidly as possible, certain classes of knowledge ought to be in the public domain and freely available to everyone.

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