Patent Responsibility

Abstract

The protection of strong rights under patent law is intended to incentivize investment in innovation. Beyond this protection, should patent law also impose responsibilities upon patent holders? The COVID-19 pandemic has revealed that the power patent law confers upon technology companies far exceeds any responsibilities these companies have assumed. This asymmetry of rights and responsibilities has undermined collaborative efforts to develop testing methods, medicines, and vaccines to contain the virus.

This article presents the first comprehensive theoretical study of patent holders’ responsibilities. Examining COVID-19-related innovations, it shows how the prevailing rights-focused patent law fails to reflect the social nature of invention. The article argues for reform of patent law so that it not only protects patent holders’ exclusive rights but also enforces their responsibilities. Based on ethics and political theory, it proposes that patent holders be required to reciprocate public contributions, fulfill innovators’ role responsibility, and confront injustices created by patent protection. To enforce these three responsibilities, the article suggests ways in which limitations on patent rights such as the disclosure requirement, experimental use defense, and compulsory licensing scheme should be reshaped, and recommends the creation of a scheme entitled the Patent Philanthropy Initiative.