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The “patent controversy” of the twenty-first century reflects claims that patent institutions are in crisis, and new developments in technology markets require departures from traditional approaches to property rights. The historical record sheds light on the nature and validity of these assertions. Patterns over the course of two centuries regarding patent grants, litigation rates, and intermediaries or “nonpracticing entities” suggest that these features of the market for ideas are hardly anomalous. Indeed, they have always been characteristic of the disruptive technologies that propelled the United States toward global industrial leadership.

This Chapter analyzes the decisions of the Dispute Settlement Body (DSB) in intellectual property cases to assess whether national laws can be adapted to reflect diversity, balance and historical contingency. It does so by considering three initiatives: (1) raising the height of the inventive step (2) creating new statutory defenses to liability for patent infringement; and (3) refusing to award injunctions automatically to prevailing plaintiffs. These initiatives implicate a nation’s ability: to ensure access to medicines, a value highlighted in the amendment of TRIPS arising out of the Doha Declaration; to offer gene-based diagnostic testing without permission of patentees; and to deal with the costs of patent trolls. In some respects the DSB has promoted the values underlying neo-federalism. However, panels often pursue a formalistic reading of the Agreement and one that is largely devoid of normative content. Instead, if TRIPS is to be resilient, panels must have regard to the normative underpinnings of intellectual property law, including the Objectives and Principles of the TRIPS Agreement. And panels will need to establish benchmarks against which to measure claimed deviations, requiring regard to national practices.

The chapter explains why, properly used, intellectual property rights (IPR) are an elegant solution to the real problems of the inappropriability and indivisibility of innovation. Under free market conditions, these factors lead to a situation in which it is just not worth it to innovate, since even if successful, the innovator will not be able to enjoy high enough profits to recoup the initial investment. The theory behind IPR is that by granting them we can diminish the problems of inappropriability and indivisibility, and thus stimulate innovation. However, the positive welfare outcomes of innovation happen only when it is widely diffused and produces a lot of spillovers, which by definition do not generate profits. Accordingly, solutions that give too strong and full property rights risk slowing down innovation. As such, those solutions can become a cure that is worse than the disease. Sadly, we have come to a point where our patent, copyrights, trademarks, and trade secrets systems favor the incumbent and the rich and stifle innovation. For locales, existing IPR act as a punitive restriction on their companies and entrepreneurs’ freedom to operate. Accordingly, communities that wish to enjoy sustained innovation-based growth must game the system to protect their innovators’ freedom to operate. The chapter concludes with a few promising venues by which communities can transform weaknesses into strength. These examples aim to highlight the many ways to go forward even under the current conditions of a broken and dysfunctional global IPR system.

This chapter describes the ways in which patents are commercially exploited by various industries. It discusses the use of patents to exclude competition in the pharmaceutical industry; patents for survival in the biotechnology industry; patents as a source of royalty income for universities; patents as lottery tickets for inventors; and patents as bargaining chips in the electronics industry. The final section explains the use of patents as tools for extortion. The term ‘patent troll’ has become widely used in the last few years, and is usually applied to an entity that has no business activities except asserting and litigating patent rights.

Chapter 11 gives an outline of intellectual property, in particular patents. The structure of patent documents is described. The use of patents literature as a source of technical conformation is stressed. The significance of non-practicing entities or patent trolls in lawsuits is highlighted. The effect on the sale of generic drugs when a patent lapses is discussed.

The mathematician Kurt Gödel showed in his Incompleteness Theorem in the early 1930s that there are some statements in mathematics that are true but cannot be proven. Whether statements are true is important in the twenty-first century, an age of ‘fake news’ and alternative facts. Patent documents are true and accurate as they are examined and can be challenged for accuracy. This chapter outlines the patenting procedure. It also highlights the role of patents as a source of information alongside other sources. Accurate and true information is important for people with interests in engineering, physical sciences and life sciences. Patent infringement and patent trolls (non-practicing entities) are described. The following technical areas are grouped together to describe how they developed over time and how they may develop in the twenty-first century: communications, computing including quantum computing, life sciences including gene editing (CRISPR), transport and unexpected consequences of technological change.