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Patents, populism and a post-evidence era?

June 29, 2016

Emma and Anne attended a lecture put on by the Institute of Brand and Innovation Law at University College London[1].  Our post reporting on the lecture was overtaken by the UK referendum on the following day, but here it is finally.


On Wednesday 22 June, we attended the 2016 Sir Hugh Laddie lecture given by Hon. Dr. Annabel Bennett AO SC, former Judge of the Federal Court of Australia, entitled “Patents and Populism[2].  In a nutshell, Dr Bennett’s talk set out, albeit in an entertaining style, a trenchant critique of recent decisions by the Australian High Court[3] and US Supreme Court[4] in which these courts struck down earlier rulings by lower courts allowing patenting of gene sequences – in the Australian case Myriad Genetics’ patent for a series of mutations in the BRCA1 breast cancer gene.  Dr Bennett, who has a BSc (Hons) and PhD in Cell Biology, argued that whilst patent litigation in lower courts generally involves knowledge of the patent system and consideration of expert evidence on the subject-matter, the Australian High Court judges did not have the necessary expertise themselves and did not hear the expert evidence that was available. 


She felt that their decision had not given due regard to evidence and had been motivated by impressionistic ideas informed by popular pressure.  She rejected the notion of a “chilling effect” on healthcare research that was mentioned in the ruling.  Dr Bennett felt that the case should have been looked at in terms of patenting and wider policy aims:  the purpose of a patent has always been a pact between the inventor and the State, in which in exchange for a period of monopoly, the inventor allows the invention to be published, thus disseminating knowledge and informing further invention. 


She feared inventors might move from using patents to trade secrets, in which an invention would resemble a closed “black box”.  In the context of squeezed government budgets, she felt that the incentive of monopoly and patent portfolio value is vital for financing continued research.  Compulsory licensing could be used where there was a public policy case for it.  Dr Bennett’s view was that the Australian High Court’s decision was not based on evidence.


Another view on the subject is given in the journal articlePopulism and Patents” by the Hon Kimberly A Moore[5] in NYU Law Review (2007) in which she investigated bias against corporate litigants in patent trials in the US.  Anecdotally this was an issue, and in this article Judge Moore reports her research, which used a dataset of over 4,000 patent cases and 1,000,000 patents.  In jury trials of patent cases between corporations and individuals, individuals won 74% and corporations 26% of cases. Corporations and individuals won at nearly equal rates in judge trials.  Judge Moore suggests that the American public’s idealisation of the inventor may be a factor.  The lower the number of inventors, the greater was the likelihood of the inventor winning the case.  She suggests that jurors may have an image of the solitary inventor toiling away at a problem, which does not accord with reality today in which most innovation arises from work in teams and requires a high level of financial, administrative and practical support.













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