The Moral Justifiability of Patents

Sigrid Sterckx
University of Ghent / FWO-Flanders
ABSTRACT. Three attempts are usually made to justify patents: natural rights,
distributive justice, and consequentialist arguments, all of which I contest. The
natural rights argument is traced back to John Locke, defender of the labour
theory of property, who essentially holds that persons have a right to property insofar as they have mixed their labour with it, and insofar as they have
appropriated natural things without exhausting them or taking more than their
share. Yet, the inventors mixing of labour is often the last step of a longer historical process, and patents seem to encourage waste, since they restrict the use
of an idea. The distributive justice argument holds that patents reward the initiative of inventors without this reward, free riders would be able to compete unfairly; the exclusivity granted by patents corrects this hole in the free
market. However, our current system does not necessarily reflect this principle; it is difficult to clarify the criteria on which an inventor deserves a reward;
unsuccessful inventors and basic researchers also invest much initiative, and
yet are not rewarded; it is unclear that justice should reward someone by granting them the exclusive right to determine what is done with knowledge; and
no link exists between the social usefulness of an invention and the scope of
protection granted by a patent. The consequentialist justification holds that
patents encourage innovation, and the disclosure of knowledge. Although it is
clear that patents encourage inventions, it is not clear that they encourage
progress they may even limit progress by restricting use of previous knowledge. As for the disclosure of knowledge: such knowledge is hard to keep
secret in the first place, and patent offices grant overly broad patents. In conclusion, this paper offers some suggestions concerning the true costs of the
patent system.
KEYWORDS. Patents, natural rights, distributive justice, consequentialism,
innovation, knowledge

ETHICAL PERSPECTIVES: JOURNAL OF THE EUROPEAN ETHICS NETWORK 13, no. 2 (2006): 249-265.
2006 by European Centre for Ethics, K.U.Leuven. All rights reserved.
doi: 10.2143/EP.13.2.2016633

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INTRODUCTION

patent is a certificate delivered by or on behalf of the government,

confirming that the object of the patent is new, nonobvious, and
industrially applicable, and that the patent application contains a sufficiently detailed disclosure of the invention.
Patents grant extensive rights. If the object of the patent is a product,
the patentee has the right to prevent others from making, using, offering
for sale, selling, or importing the product for one of these purposes. Owners of a process patent have the right to prevent others from using the
process, as well as from using, offering for sale, selling, or importing for
one of these purposes, at least, the product obtained directly through the
application of the process.1 These rights are enforceable in court.
The monopoly rights of patentees are limited in time in most countries a patent is valid for a period of twenty years from the date of application and in space, i.e., limited to the jurisdiction of the patent office
that issued a the patent.
Attempts to justify the patent system can be based on three grounds:
(1) natural rights, (2) distributive justice, and (3) utilitarian (economic)
arguments. This article will briefly explain and then criticise each of these
arguments.

THE

NATURAL RIGHTS ARGUMENT

Lockes labour theory of property

According to this argument, man has a natural property right to his ideas
and society is obliged to enforce that right. Therefore, the use of ideas
without the authorisation of the owner should be regarded as theft.
Discussions of the natural rights argument often refer to John Lockes
influential labour theory of property, which he formulates in Chapter 5
of his Second Treatise on Government (1690).2 Locke starts from two basic

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propositions to establish how men might come to have a property right

on things which God gave to mankind in common. According to the
first proposition, the preservation of mankind is a fundamental law of
nature it is Gods will. From this, Locke infers that man has a natural
obligation to ensure his preservation. This implies that man has a natural
right to his preservation,3 and to the means necessary for his preservation
(e.g., meat and drink).4
The second proposition is that God gave the earth to mankind in
common.5 However, for man to enjoy the fruits of the earth, for those
fruits to be at all beneficial to any particular man, there must to be a way
to appropriate these fruits so that others can no longer claim them.6 Locke
also asserts that everyone has a property right over his own person and
hence also over the labour of his body and the work of his hands.7 This
brings him to his famous explanation of the origin of property rights: the
appropriation of a thing occurs by man applying his labour to it, by mixing
the thing with his labour. By means of his labour he adds something of his
own to the thing and this way he excludes others from having a right to it.
For such acquisition of property, the consent of the other commoners is not required, Locke maintains.8 Appropriation can never amount
to robbery of others because every one has the right to his share and
no more than that. His share corresponds with what he can use. The
consent of others could only be required if the rights or liberties of others are being violated and this cannot be the case if no one appropriates
more than his share.9
However, Locke specifies two provisos that must be met in order for
the appropriation to be justifiable. The first condition is the enough and
as good condition: there must be enough, and as good left in common
for others.10 Thus, things may only be appropriated if, afterwards, a sufficient number of the same or similar things remain (similar also in terms
of quality the remainder must be just as good). The second condition is
the non-waste condition. Man is not allowed to appropriate more than
he can use (even if he made the things in question himself).11

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Patents and the labour theory

Is Lockes property theory applicable to intellectual property, or more
specifically to patents, and if so, which implications does it have in this
context? The well-known libertarian philosopher Robert Nozick, who has
elaborated a so-called entitlement theory,12 which is partly based on
Lockes property theory, raises the following important question:
Why does mixing ones labor with something make one the owner of it?
Perhaps because one owns ones labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns.
Ownership seeps over into the rest. But why isnt mixing what I own with what
I dont own a way of losing what I own rather than a way of gaining what I dont?13
If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout
the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?14

If one accepts that mixing labour with something occasions the coming
into existence of a property right, the question remains as to the boundaries
of that property right. How can one decide what exactly has become the
property of the person who performed the labour? This question can also
be put in terms of the value of the result. A distinction should be made
between the value attributed to the object of the labour and the value attributed to the labour itself (in other words, the added value). Determining the
proportionality of each of these values in respect of the total value of the
object to which labour has been applied would seem to be very difficult.
This weakens the justificatory strength of the labour theory of property.
Another problem is that intellectual objects usually stem from ideas
of predecessors. The labour of these predecessors also forms a component in the total value of the final result a component whose value
varies case by case. This has important implications for the question who
is entitled to the value of the final result. As Edwin Hettinger explains:

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A person who relies on human intellectual history and makes a small

modification to produce something of great value should no more
receive what the market will bear than should the last person needed
to lift a car receive full credit for lifting it. If laboring gives the laborer
the right to receive the market value of the resulting product, this market value should be shared by all those whose ideas contributed to the
origin of the product. The fact that most of these contributors are no
longer present to receive their fair share is not a reason to give the
entire market value to the last contributor.15

The question also arises as to whether Lockes two provisos apply in the
context of intellectual, abstract, intangible objects (as opposed to tangible objects). As for the second proviso man may only appropriate as
much property as he can use the question arises, e.g., whether waste can
occur in the case of ideas. It seems unlikely that an idea as such could be
wasted, but the possibilities offered by an idea can be. If someone
acquires an intellectual property right on an idea and does nothing with
it, the non-waste provision would seem to be violated. If something is
left unused by the appropriator, while others need it, the waste is all the
greater. One aspect of the patent system that can certainly induce waste
is that, in its present form, it does not oblige patent holders to work
(exploit) their invention. The history of the patent system shows that this
has not always been the case in industrialized countries, and in most developing countries, a working requirement for patented inventions has
existed until recently (or continues to exist).
Even if a patent is exploited, waste can occur. For the result of granting a patent is that the patentee can put restrictions on the use of the
invention. Since a characteristic feature of the objects of intellectual property rights is their so-called non-exclusive nature (the fact that they can
be used by many people simultaneously), limiting their use artificially can
indeed amount to waste. The extent of the waste would seem to depend
on the extent to which others need the invention in question.
Lockes first proviso the appropriation of things is only permitted if, afterwards, a sufficient amount of the same or similar things

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remain has been applied by Robert Nozick to the rights conferred by

a patent. Nozick begins by observing that, if an object becomes somebodys property, the situation of everyone else changes because that
object can only be used with the owners permission. According to Nozick, this change does not imply that the situation of everyone else actually worsens. This is a fundamental issue for him: The crucial point is
whether appropriation of an unowned object worsens the situation of
others.16 He believes this is not necessarily so and provides the following example:
If I appropriate a grain of sand from Coney Island, no one else may
now do as they will with that grain of sand. But there are plenty of
other grains of sand left for them to do the same with. Or if not grains
of sand, then other things. Alternatively, the things I do with the grain
of sand I appropriate might improve the position of others, counterbalancing their loss of the liberty to use that grain.17

However, Nozicks arguments do not seem convincing in the case of

patents, for several reasons.
First, the proposition that a sufficient number of objects will remain
for others to use is not valid for anything covered by a patent. A patent
includes one or more claims containing a description of the product or
process in question. Every other product or process that fits the description is also covered by the patent. Moreover, the product or process need
not fit the description in every detail. An equivalent product or process
is also covered by the patent.18
Second, as to Nozicks proposition that, if not enough samples of a
specific object remain for others to use, sufficient samples of another object
will be available, it can be argued that this is immaterial if that specific
object is exactly the one the others need; the fact that they can no longer
use that object as a result of the existence of a patent does imply that they
are worse off. In theory, a serious application of the patentability requirement of novelty should ensure that no patent can be granted for things

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used by others (in public use) at the time of the patent application.
However, reality is often quite different.
Third, as to the statement that the situation of others can be
improved as a consequence of what the owner does with the object, and
that this can compensate for the fact that the others are no longer allowed
to use the object, it should be repeated that patent owners are under no
obligation to exploit their invention. Even when they do decide to exploit
the invention, the use of the invention by others is still forbidden.
Nozick argues that the existence of a patent does not deprive others
of anything, since the object of the patent would not exist if the inventor hadnt been there.19 However, it can be assumed that at some stage
somebody else would have come up with it. This could be a reason for
putting a time limit on patent rights by calculating the time it would take
someone to invent the same thing in an independently.20 It seems likely
that, if the protection period would be determined on this basis, in most
cases this period would be significantly shorter than under the current
patent system.
Referring to natural law as a justification for the granting of patents
is also problematic for several other reasons, which we cannot elaborate
here. For instance: certain categories are excluded from patentability, the
validity of a patent is limited in time and space,21 independent inventors
cannot use their invention if somebody else has already patented it,22
patents can be declared void, and, in some cases, patent owners can be
forced to grant a licence to third parties or to the government.
The distributive justice argument
According to a second type of justification for the patent system, based
on considerations of distributive justice, it is only fair that inventors are
rewarded because they do society a service. The establishment of a patent
system is justified because it would be unfair to allow people a free ride
at the expense of others who apply themselves to the act of inventing.

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Free riders are people who did not invest time or money in the development of an invention and it is therefore unacceptable that they would
be allowed to compete with the inventor under normal market conditions. In order to reward inventors and to protect them against free
riders, society should grant them exclusive rights to their inventions.
Although this argument may seem intuitively appealing, not a single
plausible interpretation of distributive justice would yield a patent system like the one we currently have. Some of the problems with this argument are similar to the problems involved in the natural rights argument,
e.g., the treatment of independent inventors. However, different issues
arise as well. Without going into detail, the following problems should be
mentioned.
First, there are two possible grounds for reward: the extent of the
effort and the value of the result. Which of these two criteria should determine whether or not a person deserves a reward? The value of the result is
often influenced by factors on which the person has no impact, such as
luck. Giving a greater reward to people whose products have greater social
value might be justified on consequentialist grounds, e.g., if it is needed
as an incentive, but this has nothing to do with giving a person what she
deserves.23 The extent to which someone has made an effort is obviously
more difficult to determine than the value of the result of her efforts, but
this is a pragmatic argument which cannot be decisive in a framework of
distributive justice.
Does the patent system take into account the extent to which an
inventor has tried? The patentability requirement of nonobviousness
could give the impression that this is indeed the case. However, inventors who have spent a lot of time and money on research that ultimately
produced nothing are not rewarded under the patent system. If one
accepts the principle that efforts must be rewarded, then unsuccessful
inventors who have made efforts also deserve a reward.
A second problem is that findings in fields which are excluded from
patentability e.g., discoveries of scientific principles can also require

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significant efforts and/or represent a great service to society. Is it fair that

people who work in these fields are not rewarded? It could be argued
that distinguishing between cases that are created and cases that are discovered is thoroughly sensible since both cases lead to different ethical intuitions.
If someone merely discovers a good, we do not feel that he has so
strong a claim to it as someone has to a good that she has created.
Both sorts of claims have historically justified property rights, but creation seems intuitively to be a stronger justification. Of course, by
choosing difficult cases, where a great deal of labor is invested in discovering a good and a small amount of labor is invested in creating a
good, we can diminish the clarity of our intuitions. However, taking relatively straightforward cases, the discovery of a good does not seem to
create so strong a right as the creation of a good.24

A third question is whether the unequal distribution of, or the unequal

access to, information, which results from the granting of patents, is not
unfair. Within a consequentialist framework, the unequal access to information could be justified by referring to the encouragement effect it has
(if people expect that they will have control over the use of the information that they produce, more information will be produced and this is in
the interest of society at large). However, this kind of argument cannot
be invoked in a context of distributive justice; what matters here is the
question as to whether granting rights of ownership on information is
fair: does justice require that inventors are rewarded with patents, allowing them to decide who may use the information, or does it require that
everyone can get equal access to information?
Another important issue concerns the fact that patents are only one
possible reward mechanism; there are also other possibilities. From the
propositions that justice requires that inventors be rewarded and that the
government must intervene in order to guarantee these rewards, it does
not follow per se that a patent system must be established. Hettinger correctly notes that the argument that an inventor deserves a reward does not

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demonstrate that inventors deserve an exclusive right of ownership on

their invention:
The mistake is to conflate the created object which makes a person
deserving of a reward with what that reward should be. Property rights
in the created object are not the only possible reward. Alternatives
include fees, awards, acknowledgements, gratitude, praise, security,
power, status, and public financial support.25

Someone who agrees with the two above-mentioned propositions could

just as well defend a system of financial bonuses to reward inventors.
Proposals for a bonus system as an alternative to patents are almost as
old as the patent system itself. A frequently-used argument for such a system is that it could achieve a greater proportionality between merit and
reward. The most important counterargument has always been that bias,
arbitrariness and corruption would flourish in such a system.
The fact that inventions do not originate in a vacuum also weakens
the distributive justice argument for the patent system. Research is more
and more a question of collaboration between different people. Inventors
do not only build on ideas from colleagues or other contemporaries;
inventions often come about through the fact that people have used ideas
and inventions of predecessors. Hence, an important criticism of the patent
system is that it only rewards those who apply the finishing touch to
work carried out by others; that it only rewards those who take the last
step to practical applicability, which is unfair.
Finally, an important question in a distributive justice framework is
whether the reward offered by patents meets the requirement of proportionality. In a system based on distributive justice, every inventor is supposed to be rewarded according to his specific merit. However, under the
patent system, no link whatsoever exists between the social usefulness of
an invention on the one hand and the period of protection (the length)
and the scope of protection (the width) of the patent issued on the other
hand. All patents are valid for twenty years irrespective of the usefulness

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of the invention in question and irrespective of the effort required for the
development of the invention.26 Admittedly, it would be very difficult to
determine the proper level of reward fairly on a case-by-case basis.
Another problem relating to the proportionality of the usefulness of
an invention and the size of the reward is the frequent issuing of patents
with overly-broad claims i.e., claims which are disproportionate to the
actual contribution made by the inventor.

THE

CONSEQUENTIALIST JUSTIFICATION OF PATENTS

The third candidate for the justification of the patent system entails two
arguments: (1) The incentive to invent and innovate argument: without the
prospect of an exclusive right to use the invention, and hence a possibility of recouping the money invested in the development of the invention,
too little inventing would be done. The patent system offers inventors an
indispensable incentive. (2) The incentive to disclose argument: the patent system encourages inventors to disclose their inventions instead of keeping
them secret. Thanks to the patent system, technological information is
disseminated and this promotes technological progress, which in turn fosters economic growth.
The consequentialist justification takes the most prominent place in
the debate on the patent system. Also, this is the main argument that has
been used to convince developing countries to strengthen their patent
laws. In order for this justification to be convincing, three things need to
be proven: (i) that the patent system encourages inventions and innovations, (ii) that no better alternative system exists to achieve this, and (iii)
that the encouragement of inventions and innovations can itself be justified on consequentialist grounds. Moreover, if the patent system turns
out to be the most suitable model, it must be shown that the advantages
of this system outweigh its costs. We cannot comment on all these
questions here. After looking at the incentive-to-invent-and-innovate

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argument and the incentive-to-disclose arguments a bit more closely, we

will briefly criticise these arguments. We will conclude with some observations on the costs of the patent system.
The incentive-to-invent-and-innovate argument
A researcher or an investor never knows in advance which inventions will
be successful. And if an invention turns out to be successful, in the
absence of a patent system it can be copied by competitors. Hence, the
price must be reduced and the investor does not have an opportunity to
regain his investments, let alone make a profit. Therefore a special incentive is required so that enough people would be prepared to invest in
research and development. This is because knowledge has the characteristics of a so-called public good. Since the market does not offer an efficient solution for the production of public goods, government intervention in the production of knowledge is required.
Knowledge has three characteristics which are usually ascribed to
public goods: (i) it can be used by several people at the same time; (ii) it
costs a lot to produce knowledge; but (iii) once knowledge has been produced, the marginal costs of reproduction are low.
The failure of the market in the production of public goods can be
solved in three ways: subsidies (e.g., a prize system or a system of research
grants), direct production by the government (e.g., laboratories run by the
government or agricultural research stations), and monopolies (e.g.,
patents).27 The third solution the creation of intellectual property rights
is not necessarily the best, as intellectual property rights can limit the
dissemination and use of knowledge.
Many proponents of the incentive-to-invent-and-innovate argument
would probably agree that, ideally, inventions should be disseminated as
widely as possible and used as early and as intensively as possible in order
for society to be able to reap the full benefits of new inventions. However, patents have the opposite effect: the use of patented inventions is

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limited and their price can be kept artificially high. Advocates of the
incentive argument remark, however, that for inventions to be at all practicable, they need to be developed first. According to this line of reasoning, this implies that the dissemination of inventions must be limited.
In this context Joan Robinson talks of a paradox of patents:
The justification of the patent system is that by slowing down the
diffusion of technical progress it ensures that there will be more
progress to diffuse. Since it is rooted in a contradiction, there can
be no such thing as an ideally beneficial patent system.28

The availability of patents does result in more inventions; this is a fact

which should not be questioned but it does not prove that the patent
system promotes technological progress. For the advantages of patents
may well be cancelled out by the limitation of the dissemination of
patented inventions. The question is: which of the two trends is the
strongest? It takes more than theoretical reasoning to answer this question, yet empirical research on the economic effects of the patent system
remains scarce and inconclusive.
When evaluating the incentive-to-invent-and-innovate argument, we
should not look at the totality of inventions developed, but rather we
should ask what portion of the totality of inventions would have been
developed later or not at all if patents had not been available or if patent
protection had been weaker. Only inventions which were developed exclusively or earlier due to the availability of patents can be put down to the
patent system. For many inventions, neither is the case. On the other
hand, the use of patented inventions that also would have been carried out
in the absence of a patent system is limited by the patent system.
The incentive-to-disclose argument
The patent system is said to encourage inventors to disclose their inventions instead of keeping them secret. The reason for this is that inventors

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have to disclose sufficient information about the invention in the patent

application. Thanks to the patent system, proponents of this argument
claim, technological information is spread. After the expiration of the
patent, the information becomes part of the public domain.
The granting of patents is often described as a kind of social contract: society grants the inventor a temporary monopoly in return for
which the inventor discloses his secrets. Without patents, the argument
goes, technological information would be kept secret or disseminated
much later. This line of reasoning represents patenting as an altruistic
alternative for trade secret protection. However, the proponents of this
argument seem to be overlooking a few things.
First, it is often difficult to keep inventions secret for a long time. The
secrets behind some inventions can easily be uncovered once an invention is brought to the market. Second, the requirement of sufficiency of
disclosure is often not taken seriously by patent offices. Patents with
overly broad claims are granted, as noted earlier.29 Such patents discourage rather than encourage invention and innovation.
The costs of the patent system
Jeremy Bentham may have claimed that the patent system produces an
infinite effect and costs nothing,30 but in reality the costs are immense.
Consumers pay artificially high prices for patented products and processes.
Admittedly, some inventions have come about thanks to the availability
of patents, but consumers must pay a higher price for all patented inventions. The patent system allows for the suppression of inventions, as
exploitation of patented inventions is not obligatory. As well, the number of lawsuits involving patents is constantly increasing. Obviously, this
has an effect on the real costs of the introduction of innovations. Moreover, it produces the perverse effect that resources that would normally
be spent on research are now diverted to pay lawyers and to cover legal
costs. The result of the issuing of unduly broad patent claims is that the

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latitude for researchers who want to improve existing (and patented)

products and processes is significantly restricted.
Significant resources are invested in attempts to circumvent existing
patents. The current patent system stimulates the phenomenon of inventing around. From an economic perspective, this is problematic because
it stimulates too much investment in research and development. The issue
here is whether the patent system encourages too much investment in
research and development, rather than preventing too little investment.
However, the optimal level of investments in research and development
appears to be one of the things economist cannot determine. As a matter of fact, it seems that economists cannot (yet) tell us that much about
the effects of the patent system in the real world. Very little empirical
research exists on the economic effects of the patent system. The findings of studies that are available31 give rise to serious questions about the
strength of the consequentialist justification of the patent system.
Thus, each of the arguments that can be invoked to justify the patent
system involves several problems. Moreover, empirical research on the
economic effects of the system is scarce and raises many questions. Yet
in the past two decades, patent rights have been strengthened significantly.
One explanation for this trend is the enormous influence of corporations,
particularly from sectors such as pharmaceuticals, chemicals and ICT, on
the creation of regulation in the field of intellectual property rights.32
Another explanation seems to be the existence of a collective faith in the
benefits of intellectual property rights a collective faith that clouds our
ability to evaluate this system seriously. As Pamela Samuelson notes:
The modern faith in intellectual property does not seem likely to be
shaken soon, primarily because that faith is supported by such evidence
as high levels of innovation, high levels of investment in innovation,
and the concomitant prosperity. The intellectual property laws may not
have been responsible, but most observers believe that those laws have
played a part. If intellectual property law is stifling research or steering
research in the wrong direction, our collective faith may keep us from
recognizing it.33

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NOTES
1. See art. 28 (Rights Conferred) of the WTO-TRIPS Agreement (Agreement on Trade
Related aspects of Intellectual Property rights, 1994).
2. See John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), 285-302.
3. Locke, II, V, 25.
4. Ibid.
5. Ibid.
6. Locke, II, V, 26.
7. Locke, II, V, 27.
8. Locke, II, V, 28.
9. Locke, II, V, 36 and II, V, 46.
10. Locke, II, V, 27.
11. Locke, II, V, 31. See also Locke, II, V, 37 and II, V, 38.
12. See Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), 160: Whoever makes something is entitled to it. The situation is not one of somethings getting made,
and there being an open question of who is to get it. Things come into the world already attached
to people having entitlements over them.
13. Ibid., 174-75 (emphasis added).
14. Ibid., 175.
15. Erwin C. Hettinger, Justifying Intellectual Property, Philosophy & Public Affairs 18 (1989)
1: 38.
16. Nozick, 175.
17. Ibid.
18. Pursuant to the so-called doctrine of equivalents which is applied by most patent offices.
See Robert P. Merges, Patent Law and Policy. Cases and Materials, 2nd ed. (Charlottesville: Michie
1997), 917-18. This doctrine is applied especially eagerly in the United States.
19. Nozick, 181.
20. Nozick acknowledges that a patent does deprive independent inventors. He claims that
independent inventors should have the right to use their invention (182).
21. Patents granted in a patent system built on the basis of the natural law argument could
be expected to be perpetually valid (or at least until the death of the patent holder) and to be
enforceable worldwide.
22. The exclusion of independent inventors may be justifiable on consequentialist grounds
- by referring to the incentive function of the system, which would be eroded if independent
inventors were allowed to lay claim to the invention. But a justification of the exclusion of independent inventors on the basis of natural law is problematic since under natural law independent
inventors have the same natural property right to an invention as the inventor who applied first
at the patent office.
23. Hettinger (1989), p. 42.

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24. Patrick Croskery, The Intellectual Property Literature: A Structured Approach, in:
Owning Scientific and Technical Information Value and Ethical Issues, ed. Vivian Weil and John Snapper (New Brunswick: Rutgers University Press: 1989), 270.
25. Hettinger, 41.
26. Several developing countries have traditionally provided different protection periods
depending on the industrial sector, e.g., shorter protection for inventions in the food sector. As
a result of the implementation of the WTO-TRIPS Agreement, protection periods of less than 20
years are no longer allowed.
27. In many countries, several mechanisms are used simultaneously. For a discussion of
each of these mechanisms in the case of production of knowledge: see Paul A. David, Intellectual Property Institutions and the Pandas Thumb: Patents, Copyrights, and Trade Secrets in Economic Theory and History, in: Global Dimensions of Intellectual Property Rights in Science and Technology, ed. Mitchel B. Wallerstein, Mary Ellen Mogee, and Roberta Schoen (Washington, DC: National
Academy Press, 1993), 32-36.
28. Joan Robinson, The Accumulation of Capital (Homewood, Ill.: Richard D. Irwin, 1958), 87.
29. See, e.g., Sigrid Sterckx, European patent law and biotechnological inventions, in:
Biotechnology, Patents and Morality, ed. Sigrid Sterckx, 2nd edition (Aldershot: Ashgate, 2000) 21-25.
30. Jeremy Bentham, A Manual of Political Economy (1785), in: Works of Jeremy Bentham, published under the supervision of John Bowring, 11 volumes (Edinburgh, 1843), vol. III, 71.
31. For a discussion of existing research as well as various references, see Keith E. Maskus,
Intellectual Property Rights in the Global Economy (Washington, DC: Institute for International Economics, 2000).
32. Susan Sell, Private Power, Public Law - The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003).
33. Pamela Samuelson, Innovation and Competition: Conflicts over Intellectual Property
Rights in New Technologies, in: Owning Scientific and Technical Information Value and Ethical Issues,
ed. Vivian Weil and John Snapper (New Brunswick: Rutgers University Press: 1989), 179.

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