Giving Frankenstein a Soul: Imposing Patentee Obligations

Modern innovators, academic institutions, and technology corporations strive continually, in modern society, to be evermore modern. Sometimes they stumble upon a way to create a more powerful power tool, or they strive to be the first to formulate a new, water-resistant, rice variety, or to engineer a new, high-performance consol gaming microprocessor. Indeed, patenting has become more than just a modern fancy - it is a modern frenzy. The World Intellectual Property Organisation (WIPO) estimates that, in 2007 alone, patent applications grew by a record-breaking 4.7 per cent in 2007, and 156,100 applications were filed within the 136 Patent Cooperation Treaty countries alone, the average cost of which is about $1,300 US. Innovation is undeniably a quintessential human desire, and a gratifying human achievement. In 2006, Canadian cities authorised 233,200 new homes, the permits for which cost contractors $66.3 billion. Without power tools, home construction would return to Doukhobor methods and basic subsistence would be jeopardised. According to a recent United Nations (UN) report, rice is a staple food for over one-half of the world's population, and fulfills twenty per cent of the world's dietary needs. Almost one billion families in Asia, Africa, and the Americas, depend on rice for their livelihood. Without technically-advanced, hardy varieties of rice, in the modern, climatically-changing world, a global famine is not unforeseeable. On a less gloomy, although doubtless important note, the PlayStation-3 consol is, essentially, an advanced microprocessor akin to one found in a personal computer. In January, 2008, at the International Consumer Electronics Show, Toshiba demonstrated its newest high definition television, which runs on the PlayStation-3's microprocessor. Without these innovations in human entertainment, society would, no doubt, resort to more archaic - and, admittedly, more physically healthy - forms of entertainment. Clearly, innovators' contributions, though not always essential, are rudimentary to humankind's modern existence. For their contributions, innovators enjoy a broad range of benefits including, primarily, a fixed period monopoly over the innovation. Yet, while modern policy and jurisprudence offers the innovators a monopoly, it does so irresponsibly. Acceding rights to innovators to make, use, or sell their innovations, without bestowing concomitant obligations upon them to ensure, inter alia, that their innovations are safe and effective, is irresponsible. Moreover, it contradicts starkly the fundamental principles of property law. This paper will demonstrate that modern patent law must be reformed to reflect these basic principles, to remain viable in the light of modern concerns for practicality, safety, and economic efficiency in the public interest. Part II will, through a detailed historical analysis, provide some context within which to examine modern patent law's frailties. Part III will demonstrate that the modern patent law is an aberration, in this historical property rights context. Part IV will propose a means by which to reform the modern law effectively, to achieve a balanced, defensible patent policy.