Amongst the general public this is a frequent issue raised – what if someone patents the technology but fails to bring it to market for the benefit of everyone? Shouldn’t patents reward bringing the technology to commercial use, shouldn’t the period of monopoly depend on that? Well maybe that could actually work. (You get say 10 years and then another 10 after providing evidence of commercial use.) But that’s a separate discussion.
So, patent lawyers the world over will cite compulsory and crown use licenses as the eternal fix-all for such situations – if you don’t use your patented technology within a set period (usually around 5 years) then in almost every country in the world, a third party has the ability to ask the court for a licence.
But who has heard of this problem actually being real let alone widespread? How many cases are there where the technology never makes it to market at all? (And we’re not talking here about technology utilised in some but not all countries, such as pharmaceuticals.)
There are very few if any proven examples of this. Why is that?
This was all sparked by a recent question sent to me from Denmark via the illustrious Jeremy Philips:
"Do you know of any interesting scientific evidence or comment that points directly to (specific) patent owners withholding patents? …I am speaking with a non-patent audience – as business people, they are very interested in practical illustrations of course…"
Here’s part of my answer, what would you add?
"I’m not aware of any clear-cut cases. The problem is that there is such a large gap between filing a patent application and getting a product to market that it is not a simple task at all to interpolate that a product was kept from the market after being ‘patented’.
There are all sorts of reasons why the product may have failed, or may need further technology to be developed first. Or indeed, that simple commercial considerations suggest investment in marketing rather than this technology today."
[Photo credit: Curious Expeditions]