ایجاد یک رژیم جدید حقوق مالکیت معنوی در ایالات متحده آمریکا: ریشه ها، محتوا و مشکلات

Major changes have been made over the past 20 years in the US intellectual property rights regime. These include the fact that the regime has been opened up to software patents and to business models, on one hand, and to living entities on the other—all within a general environment marked by the relaxation of patentability criteria. They have resulted in major changes in the US system of innovation—more specifically in the increasing privatisation of knowledge domains and activities that were previously public. The changes result from the combined effects of a response to US perceptions of increased foreign competition, of the emergence of major new technological opportunities in biotechnology and ICT, and of a series of regulatory changes that have paved the way for the financial sector’s increased involvement, via direct investments in firms whose main activity is comprised of R&D. Contemporary doubts about the viability of these changes reflect, the harmful long-term economic effect of the privatisation of basic knowledge (especially in the biopharmaceutical sector) and the difficulties that the financial sector has faced in ensuring the sustainability of the necessary pre-conditions that allow for the development of innovation.

In order to highlight the significance of the changes that have taken place in the area of intellectual property (as well as its effects on the conditions for producing and diffusing innovation), the present paper has been articulated and organised as follows. Section 2 recaps some of the main findings from the field of economics of patent and innovation, in an attempt to clarify how, and to what extent, the new regime deviates from traditional analysis and practices in this area. Some of the legislative changes (initiated by Congress to reinforce the PR regime) are presented and analysed; they have been re-situated in the specific environment of the time, characterised by a sharp drop in American firms’ competitiveness ( Section 3). The analysis then focuses on two specific domains: the continued extension of the area of patentability to computer programs, mathematical algorithms and “business models” ( Section 4); and to living entities ( Section 5). These two fields were chosen because they have experienced the most dramatic changes. In Section 6, the paper presents the concomitance of change in the IPR systems and financial sphere and the related changes it has generated as regards the financing of innovation. The conclusion ( Section 7) raises questions about the long-term sustainability of this type of regime in the light of recent developments.

The many changes that the present article has discussed are a topic of widespread analysis and debate nowadays. At first glance, the new policies the American authorities and Courts have been deploying in order to enforce the new IPR regime would appear to have been successful. In some areas (semiconductors and computer software in particular) American firms who had been overtaken by their Asian rivals during the 1980s were market leaders again. More significant is the fact that many new firms have entered the market. The areas we have studied (biotech, genetics, semiconductors, computer software, etc.) were characterised throughout the 1990s by the proliferation of companies of all different sizes. However, despite such ostensible successes, the new regime does not appear to have stabilised. There has been a great deal of tension in certain areas and this has raised questions about the future. Two points are particularly salient at this juncture and we would like to finish this article by focusing on those issues that remain unanswered.