The cost-benefit ratio of patent system, that is, whether patent system promotes or hinders technological progress and economic development, has always been a controversial topic, and there is no conclusion so far. Proponents of the patent system believe that the patent system will produce many economic benefits, that is, the patent system can stimulate more inventions, [3] thus adding unprecedented new products or methods to society. This theory holds that invention itself is a kind of social wealth, and the realization of invention should be encouraged. However, intellectual property rights such as inventions require a lot of manpower and material resources. At the same time, after the invention is published, it is easy to be imitated and copied by others. Therefore, without the protection of intellectual property rights, other competitors will be able to counterfeit at a very low cost. This will lead to a "free ride" or "externalization" problem, that is, a few inventors bear huge R&D costs, while other competitors can use and copy the inventors' scientific research results almost for free. [4] This situation will affect the inventor's ability to profit from his invention technology, lead to the externalization of interests, and may damage the enthusiasm of individuals or enterprises to invest resources in scientific research and creation. Therefore, every enterprise will not proceed from its own interests and is willing to invest in scientific research funds, but wait for others to invest in scientific research activities and achieve results before going to fight counterfeiting. As a result, no enterprise is willing to engage in scientific creation activities, which may eventually reduce inventions and thus reduce social wealth. But the market itself can't solve the problem of "hitchhiking" and needs government intervention.
First of all, the main function of the patent system is to encourage the enthusiasm of enterprises for invention and creation, which is embodied in encouraging enterprises to increase investment in research and development (R&; D) enthusiasm. However, the role of the patent system may be very limited for the scientific research input of the government and non-profit organizations. This kind of scientific research investment is rarely influenced by the patent system, because government agencies and non-profit organizations mainly consider the needs of national economic and social development when investing in scientific research, and are rarely driven by the interests of patent monopoly rights. In practice, many inventions are produced by fund research provided by the government and other non-profit organizations, and this part of scientific research investment is generally not affected by the patent system. For example, the patented drug d4T (stavudine) produced by Bristol-Myers Squibb (BMS), a large multinational pharmaceutical company, is the result of the Michigan Cancer Research Foundation's utilization of national research funds; The therapeutic effect of this drug on AIDS was discovered and patented by Yale University. 1988, the school licensed BMS company to produce the patented drug. [9] Another patented drug, ddI, produced by BMS, was invented by the National Institutes of Health, and licensed to BMS with a patent royalty of 5%. [10] In these cases, inventions are hardly affected by the patent system.
Secondly, the patent system is not the only way to encourage investment in scientific research, even for private inventions (companies and other commercial organizations). In addition to the patent system, there are many other factors (such as market leading position, safety measures, etc. ) can encourage invention and creation. In other words, the invention does not depend entirely on the stimulation of the patent system. For example, a British study shows that only a few inventions rely on patent protection, and the impact of the patent system varies from industry to industry. For example, patents have little influence on complex engineering technology, but they have great influence on chemical and pharmaceutical industries. This may be because complex engineering technology is easy to take safety measures, so it is less affected by patent protection; On the contrary, in the chemical industry, medicine and other industries, patent protection is more important, because patented technology is easy to be copied, and it is difficult for technology owners to keep it secret. American scholar Levin also pointed out that confidentiality and market leading position are more important than patent protection for new inventions. [1 1] These findings have been recognized by a recent empirical study in Australia, and [12] has also been supported by some empirical studies. For example, before the TRIPS Agreement, Sweden did not grant patent protection to drugs, but the pharmaceutical industry in this country is still thriving. [13] In addition, after studying the influence of Italian medical patents recently, Professor Cheryl and Professor Vesbas also found that the new law of granting patent 9 to medical inventions since 1978 has enhanced the enthusiasm of enterprises to apply for patents, but there is no evidence that medical patents have stimulated Italian pharmaceutical enterprises to increase R&: D investment. [14] These phenomena seem to prove the research results of Taylor and Seburton, that is, many companies will continue their scientific research activities even if there is no patent system; [15] Even if patent protection is implemented, it may not necessarily improve the enthusiasm of enterprises to invest in scientific research activities.
Secondly, patent monopoly will make consumers bear excessive monopoly prices. [19] Because the patent system enables the patentee to monopolize the output and market price of patented products, [20] and artificially raise the price of patented products, 1 1 Therefore, the patent monopoly right may make consumers bear excessive prices. This negative effect of patent system has been proved by many research results. For example, the "three-in-one" formula for treating AIDS, according to the price of American pharmaceutical companies, costs 2000 dollars per patient every year; But if it's made in an Indian factory, it's only $500, plus $200 for packaging. [2 1] For another example, the selling price of d4T, an AIDS drug produced by Bristol-Myers Squibb (BMS), in the United States is $4.5 per 40 mg; Pinheiro pharmaceutical factory in Brazil can sell the same drug for 30 cents. [22] Indian pharmaceutical factory (Cipla) can sell d4T pills at the price of 10 mg and 10 cent. Its drug price is 98% lower than that of BMS company, and it can still make a profit. Another example is that the price of AZT, the main patented drug for treating AIDS sold by Galaso Company, is as high as twice its manufacturing cost. [24] Recently, a survey by an organization called "American Family" showed that in 200 1 year, the price increase of 50 kinds of prescription drugs commonly used by the elderly in the United States was three times that of the inflation rate in the same period; Some drugs (metoprolol) have increased more than 8 times. Among them, the price increase of patented drugs is 4. 15 times that of generic drugs (the former is 8. 1% and the latter is 1.8%). [25] It can be seen that the patent system may artificially raise the price of products and cause damage or inconvenience to consumers.
Also, many invalid or low-level patents will increase unnecessary costs to society. Because the essence of patent monopoly right is to reward inventors at the expense of competitors and consumers, and its purpose is to encourage scientific creation and technological innovation. However, there are a large number of invalid or low-level patents in practice. This means that the new technology lacks the necessary creativity or novelty and does not meet the conditions of patent protection. From the perspective of contract, a bilateral contract has been formed between the state and the inventor. The state gives the inventor a monopoly right, and the inventor provides qualified new technology. When a patent is declared invalid, it usually means that the inventor did not provide the corresponding consideration in this case, and the other party to the contract, namely the country or the public, may suffer losses. In a study in the 1970s, Vaitsos pointed out that when competitors sued for its validity, most American patents were declared invalid. From 194 1 to 1945, patents declared invalid by the court of appeal and the high court accounted for 89% of the total number of patent validity disputes. [28] In addition, James J. Love, chairman of a technology consumer organization headquartered in the United States, pointed out: [29] The patent examination in the United States is too wide. A large number of patents approved by the United States Patent Office are likely to be invalid if they are examined by reasonable standards of novelty and creativity. If the owners of these patents try to enforce their patents, the validity of their patents will be fragile. For example, the "AIDS Health Foundation" recently sued grasso Company of the United States, demanding that the latter's patent monopoly on AZT, an AIDS drug, be abolished; One of the reasons for litigation is that AZT's patent is invalid. Because as early as the 1960s, the efficacy of this drug was discovered by a public research institution in the United States, and grasso did not apply for a patent until the 1980s, [30] therefore, grasso's application has lost its novelty.
Finally, the cost of patent disputes should not be underestimated. According to a statistical result of Canada in the 1970s, most patent dispute cases need three to five years to be closed, and the lawyer's fee alone reaches more than 20,000 (simple cases) or10,000 Canadian dollars (complex cases) per case; At the same time, the expert witness fee needs 3000 to 10000 Canadian dollars. In addition, there are legal fees and printing fees. [3 1] In the United States, the cost of patent disputes has reached astronomical figures in recent years. 1998, the average cost of patent litigation cases is $65,438+$2,000 per party; Complex cases cost more. For example, an American judge commented in the AZT drug patent dispute case: "During the period from 199 1May 14 to128 June 1993, the court handled about 54 1 requests and conducted dozens of hearings and various investigations; The court issued 88 written rulings and numerous court rulings. Therefore, the court is well aware of the facts of the case and the disputes between the two parties ... For the court and both parties, the trial of such cases is complicated ... It is conceivable that the parties will spend $654.38+million every day during the trial of the case, excluding the time of the court and jurors. When the trial of the case entered the fourth week, the parties conservatively estimated that the trial of the case would take another 6 to 8 weeks. " [32] It can be seen that the existence of the patent system is not without cost. "
As can be seen from the above, the patent system may generate potential benefits, but it will also cause huge economic costs. Due to the lack of reliable empirical data, this issue has been debated endlessly, and no conclusion has been reached so far. Those who support the patent system believe that the patent system is an appropriate protection for inventors, compensating their risks and encouraging inventions by giving them "normal profits" and corresponding excess profits. However, many economists are skeptical or even negative about the economic benefits of the patent system. In 1950s, economists entrusted by the Patent Subcommittee of the United States Senate launched a heated debate on the economic gains and losses of the patent system. [33] Among them, yost declared optimistically that patents are very important to stimulate and encourage the enthusiasm of scientific research and technological innovation. 14 However, Vernon thinks that the data relied on by yost's research is one-sided and biased. [34] He doubted the direct influence of the patent system on scientific research and invention creation, and pointed out that the mutual licensing of patented technology among large international companies hindered international trade, so the use of compulsory licensing should be expanded. 15 In addition to Vernon, Mahlup, a well-known professor at Johns Hopkins University in the United States, also pointed out that the patent system has advantages and disadvantages, and the specific results depend on the specific conditions of each country. The patent system may bring obvious benefits to developed countries such as the United States, but it may do more harm than good to underdeveloped non-industrial countries. He concluded: "As far as our current understanding is concerned, no economist can say with certainty that the current patent system has brought net benefits or net losses to society. At most, he can only assume and guess the consistency between reality and his hypothesis. If a person does not know the overall quality of a system (rather than some of its characteristics), the safest' policy' is to keep it as it is: if there is such a system, let it be; If not, there is no need to build it. If we don't have a patent system, it is irresponsible to establish a patent system according to the economic effects we know today. But because we have a patent system for a long time, according to our existing knowledge, it is irresponsible to suggest abolishing the patent system. The latter is a country like the United States, which is not a non-industrial country in essence. For non-industrial countries, the analysis of the advantages and disadvantages of the patent system will show another conclusion. " 16
Many other economists have reached a similar conclusion. [35] For example, after comparing the patent system with the extensive compulsory licensing system, British economists concluded: "The economic benefits of the patent system slightly exceed the extensive compulsory licensing system implemented worldwide, and the latter pays the patent royalties on reasonable commercial conditions." [36] American scholar Penrose pointed out: "It is difficult to evaluate and it is impossible to fully test the necessity of the patent system to stimulate the invention, creation and application of new technologies." [37] American scholar Maskus tends to affirm the positive role of the patent system, but he also has to admit that "in theory, strengthening intellectual property protection may improve or hinder economic development. From an empirical point of view, the evidence of economics is scattered and even contradictory, partly because many concepts are difficult to measure. In addition, many economists believe that there are many problems in the patent system, so it should be replaced by other systems. For example, economist K J Arrow suggested replacing the patent system with a "centralized decision-making system", which may include funds, subsidies and bonuses. [39] Demsetz believes that although the patent system is not perfect, it does not mean that other systems are better. [40]
It can be seen that whether the advantages of the patent system outweigh the disadvantages or the disadvantages outweigh the advantages is still inconclusive. However, the above analysis clearly shows that the patent system has inherent negative effects and will cause huge social costs, so unrestricted patents or over-protected patents will cause unbearable burdens to society. Therefore, when formulating patent laws, countries should strive to achieve an ideal balance: giving inventions certain exclusive rights to ensure the enthusiasm of scientific research and creation; At the same time, the patent monopoly right is restricted to a certain extent, so that the public can spread and use the invention technology as widely as possible. Otherwise, if the two are unbalanced, it will lead to adverse economic consequences. If patent protection is not enough, it may damage the enthusiasm of invention and creation and reduce the possible social wealth; On the other hand, if the patent is over-protected (such as the patent term is too long or the patent scope is too wide or unlimited), it will not only not stimulate effective scientific creation activities, but also affect the spread and use of new technologies, hinder technological progress and cause unnecessary social costs. For example, recent research by Bertson and Maskin shows that the patent system leads to technological innovation and social welfare reduction in computer, semiconductor technology and software industries. Therefore, the stronger the patent protection, the better, but a proper balance should be achieved. [4 1] Therefore, almost all countries impose certain restrictions on the patent right while granting the patent right to the patentee, [42] such as stipulating the exceptions to protect the patent right, the duration of patent protection, and the compulsory licensing system.
1.E T Penrose pointed out that the main reason for the existence of the patent system is that many countries believe that the formulation of patents can promote new inventions and social wealth, and its economic benefits exceed social costs. In addition to economic theory, there are theories supporting patent right: first, the theory of natural rights, that is, patent right is a natural right of inventors for their new inventions. First of all, the theory of economic reward holds that inventions contribute to social welfare, and society grants them exclusive rights and control over inventions as a reward. Third, the theory of labor income means that a person should enjoy the fruits of his labor. For example, John Locke believes that people should have property rights to the fruits they create. Therefore, inventors should enjoy natural control and rights over the fruits of their labor. In other words, because a person has property rights to his body, he should have property rights to the fruits of his labor (J. Locke. The second hospitality of the government [m]. Chapter 5). This is perhaps the most instinctive explanation of the patent system. Fourth, the theory of sovereignty and privacy. For example, Ronald Dorkin believes that human survival needs to use and consume some materials, and personal sovereignty over certain items is very important for human dignity. Having private property rights enables individuals to gain autonomy, privacy and security. Therefore, the law should give individuals intellectual property rights. (Penrose. Economics of international patent system [M]. Johns Hopkins Press, 55, 76-79( 195 1). These theories are all accepted by American scholar Hettinger (E.C. Hettinger, justifying intellectual property, Philosophy &; Public affairs, 3 1( 1989). )
Abstract: The current patent laws in all countries advocate that the patent system can promote economic development. However, economists have different views on this issue. Considering the huge economic cost, most critics are skeptical about the net economic benefits of the patent system. The analysis method of law and economics shows that the economic benefit of patent system is likely to be exceeded by its huge potential cost. Therefore, patent law should strike a balance between protecting patent rights and public interests, so as to reduce the cost of patent system. From this perspective, China's patent law seems to overemphasize the positive role of the patent system and underestimate its negative role. Therefore, it is necessary to revise the existing laws according to economic efficiency.
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