Research Paper 58, December 2014

Patent Examination and Legal Fictions: How Rights are Created on Feet of Clay

Patents are often presented as an absolute property, comparable to property over land. This simplification overlooks that patent rights are conferred without a solid determination of the factual conditions required for such rights to arise out. The examination process of patent applications faces substantial limitations, even in the case of large patent offices, to determine whether a claimed invention actually meets the patentability standards, however defined. Such an examination does not offer a guarantee regarding the validity of the titles granted nor, in many cases, ensure a clear delimitation of the boundaries of the protected invention. Despite this, an examination system is a better option than a mere registration system, as the latter creates legal monopolies without a minimal analysis of what is claimed.

Patents are granted on the basis of a number of legal fictions that reveal how precarious the basis for the grant of such rights often is. Importantly, however, no country is obliged under the TRIPS Agreement or any other international instrument to apply such fictions or to accept certain types of claim formulations. Nor can they be prevented from changing their previous policies by introducing more rigorous standards under which certain claims would be disallowed.

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