The Development of an Expectations Theory of Patent Law by Creating a Nexus with John Locke's Theory of Private Property

Abstract\nThis thesis reviews the Lockean justification of private physical property as an explanation for patent “property,” identifies its weaknesses, and modifies it to create a new theory of patent law based on expectations. After describing the characteristics of technical information, that description is applied to three different interpretations of the Lockean condition which demonstrate a strain in defining technical knowledge as property. The technical information paradigm is then applied to an expectations theory, which demonstrates a broad connection to the Lockean conditions, but maintains a fit within a wider patent law interpretation. The expectations theory also creates an avenue for reintroducing utility assessments of patents and setting flexible patent terms. An example of a new medicine is used to test the various forms of the Lockean condition and the expectations model.\nThe historical development of modern patent law is reviewed then separated into two periods, which are subsequently generalized. While the early period prioritized utility assessments, working requirements and the individualization of patent terms, the later period minimized the importance of utility and working requirements, but prioritized inventiveness. The three different Lockean conditions, along with the expectations theory, are applied to the generalized form of each historical era. While each form of the Lockean condition illustrates a unique relationship to the patent law eras, the expectations model provides an encompassing explanation because of its fitness with the definition of technical information.\nThe analysis demonstrates that patent law can be categorized as either strong form patent law or weak form patent law, based on what can be expected from it. While the strong form creates an expectation of a societal benefit from a patent beyond simply disclosing it, the weak form does not. The utility assessments of patents in the first era, along with the individualization of patent terms meant that the first era exhibited strong form patent law. The loss of utility assessments, working requirements, and adjustable patent terms during the second era characterize it as weak form. While nonobviousness narrowed the scope of patent to things that were truly innovative in the second era, it was not a sufficient basis for ensuring that a Lockean bargain was achieved.\nThe modified expectations model is then applied to Canada’s pharmaceutical patent law history to demonstrate how Canada’s patent law with respect to pharmaceuticals changed from strong form to weak form once it relinquished its compulsory licensing provisions, leaving few expectations from foreign-registered pharmaceutical patents by the early nineties.\nThe pharmaceutical patent law history of Canada also illustrates the difference in competitors that a modified Lockean theory of patent law creates – close competitors who can act upon each other’s patented information and far competitors, where one competitor cannot act upon the other’s patented technological information that it patents. The closest competitors need not rely on any mechanisms like working requirements or compulsory licenses to achieve the patent bargain because their ability to use the patented information arises in a reciprocal fashion, as suggested by Locke’s original enough and as good condition. With far competitors, however, the patent bargain is not as easily attainable because of the inability of the patent grantor to use the patented information to extend the knowledge or employ it after patent expiry. Overall, the close competitor/far competitor distinction reveals the specificity of patent “property” (technical knowledge) that makes it challenging to transfer it to others, in contrast from Locke’s general physical property model, which easily transfers interchangeable land from person to person.\nThe thesis concludes with a practical application of an expectations model to demonstrate its use beyond macro-analysis to the micro-analysis of patents. Employing a Canadian patent case adjudicated at the Federal Court and the Federal Court of Appeal, the analysis demonstrates the use of utility parameters in evaluating patents, creating patent score cards which can eventually be used as a database for evaluating the utility of future patents and setting patent terms accordingly.

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