Remèdes à la privatisation de l'information par la propriété industrielle : le domaine technique

This article deals with the problem that, contrary to traditional modes of patent protection, which were based on demanding standards of patentability of inventions and on a strict disclosure requirement, patent law at present tends to protect also elements of information as such rather than inventive technical teachings, and does so in particular in the area of biotechnological discoveries. The rationale underlying this shift from protecting complex instructions to basic information is derived from both an increasingly investment-oriented approach to industrial property protection, and its justification by Hobbesian notions of human equality, and they are supported by a pro-protection bias of the major international organisation in the field, which is the World Intellectual Property Organisation. To remedy this counterproductive trend, it is not only proposed to return to stricter standards of patentability, and to take mandatory licensing obligations more seriously. Rather it is suggested to introduce a particular liability for unjustified patent applications and claims for protection as well as to examine ways to establish a use requirement for patents. Finally, alternative forms of innovation incentives and rewards are considered, which, if introduced, would allow to again tighten patent protection, and thus to reinstall it in its more limited, but genuine role.