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Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Law

Supervisor

Trosow, Sam

2nd Supervisor

Awad, Bassem

Abstract

Abstract

This thesis reviews the Lockean justification of private physical property as an explanation for patent “property,” identifies its weaknesses, and modifies it to create a new theory of patent law based on expectations. After describing the characteristics of technical information, that description is applied to three different interpretations of the Lockean condition which demonstrate a strain in defining technical knowledge as property. The technical information paradigm is then applied to an expectations theory, which demonstrates a broad connection to the Lockean conditions, but maintains a fit within a wider patent law interpretation. The expectations theory also creates an avenue for reintroducing utility assessments of patents and setting flexible patent terms. An example of a new medicine is used to test the various forms of the Lockean condition and the expectations model.

The historical development of modern patent law is reviewed then separated into two periods, which are subsequently generalized. While the early period prioritized utility assessments, working requirements and the individualization of patent terms, the later period minimized the importance of utility and working requirements, but prioritized inventiveness. The three different Lockean conditions, along with the expectations theory, are applied to the generalized form of each historical era. While each form of the Lockean condition illustrates a unique relationship to the patent law eras, the expectations model provides an encompassing explanation because of its fitness with the definition of technical information.

The analysis demonstrates that patent law can be categorized as either strong form patent law or weak form patent law, based on what can be expected from it. While the strong form creates an expectation of a societal benefit from a patent beyond simply disclosing it, the weak form does not. The utility assessments of patents in the first era, along with the individualization of patent terms meant that the first era exhibited strong form patent law. The loss of utility assessments, working requirements, and adjustable patent terms during the second era characterize it as weak form. While nonobviousness narrowed the scope of patent to things that were truly innovative in the second era, it was not a sufficient basis for ensuring that a Lockean bargain was achieved.

The modified expectations model is then applied to Canada’s pharmaceutical patent law history to demonstrate how Canada’s patent law with respect to pharmaceuticals changed from strong form to weak form once it relinquished its compulsory licensing provisions, leaving few expectations from foreign-registered pharmaceutical patents by the early nineties.

The pharmaceutical patent law history of Canada also illustrates the difference in competitors that a modified Lockean theory of patent law creates – close competitors who can act upon each other’s patented information and far competitors, where one competitor cannot act upon the other’s patented technological information that it patents. The closest competitors need not rely on any mechanisms like working requirements or compulsory licenses to achieve the patent bargain because their ability to use the patented information arises in a reciprocal fashion, as suggested by Locke’s original enough and as good condition. With far competitors, however, the patent bargain is not as easily attainable because of the inability of the patent grantor to use the patented information to extend the knowledge or employ it after patent expiry. Overall, the close competitor/far competitor distinction reveals the specificity of patent “property” (technical knowledge) that makes it challenging to transfer it to others, in contrast from Locke’s general physical property model, which easily transfers interchangeable land from person to person.

The thesis concludes with a practical application of an expectations model to demonstrate its use beyond macro-analysis to the micro-analysis of patents. Employing a Canadian patent case adjudicated at the Federal Court and the Federal Court of Appeal, the analysis demonstrates the use of utility parameters in evaluating patents, creating patent score cards which can eventually be used as a database for evaluating the utility of future patents and setting patent terms accordingly.

Summary for Lay Audience

This thesis creates a new theory of patent law. It examines John Locke's theory of private property from the 1600's, then uses the characteristics of technical knowledge to demonstrate that Locke's theory does not translate well into a patent law theory. The theory then demonstrates that Locke's enough and as good condition (and its alternate forms) can be generalized into an expectations theory that better describes patent law and also allows for the institution of flexible patent terms instead of the current rigid ones.

The thesis reviews the history of patent law development since the 1300's and elucidates two general periods in patent law. Once the periods are characterized and generalized, they are contextualized within a Lockean theory and also within the new expectations theory. From the analysis, two forms of patent law are elucidated: strong form (from the early period) and weak form (from the later period).

Following the historical review, the thesis examines the history of pharmaceutical patent law and applies the Lockean and expectations theories to it. Besides demonstrating strong form and weak form patent law, the chapter also identifies parties to a patent who have divergent knowledge bases as far competitors, while parties to a patent who have similar knowledge bases are identified as close competitors.

The final chapter demonstrates how an expectations analysis can be used to evaluate patents on an individual basis by examining a specific pharmaceutical patent case from the Federal Court of Canada.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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