Weak patents, open source patenting, and implications for the Bayh-Dole Act in developing countries

Patenting has increased dramatically over the last 25 years. In addition to a surge in the number of patents issued, expansion of the patent system has included: increases in the breadth of patentable subject matter, the strengthening of patent policies in many countries instigated by the TRIPS Agreement, and, through the Bayh-Dole Act, the involvement of U.S. universities in the ownership of patents resulting from federally-funded research. Many economic, legal, and policy issues have arisen from these systemic changes---both in the patent system itself and in the use of patents. This dissertation considers three areas of significant change: the weakness of patents, open source patenting, and possible implications for the Bayh-Dole Act in developing countries.; First, evidence is presented that allows for an empirical investigation into weak patents (i.e. patents that are more likely to be invalid). While court decisions on invalidity have been used previously as an indicator of the prevalence of invalidity, literature in this field also acknowledges problems with selection bias when making inferences about adjudicated win rates. This dissertation empirically explores the presence of sample selection bias issues in relation to weak patents.; Second, an innovative legal mechanism is analyzed for extending the principles of used in open source production of software from copyright law to patent law. Increasingly dense patenting of, in particular, agricultural and health technologies, and the supposition that such patenting is impeding innovation in certain fields, has stimulated interest in finding alternative mechanisms to support innovation which still operate within the legal landscape of the patent system. Open source patenting is one such mechanism.; Third, the Bayh-Dole Act of 1980, which was intended to facilitate the commercialization of inventions resulting from U.S. federally-funded research, is considered here within the context of developing countries. After 25 years of experience in the U.S. with the Bayh-Dole Act, there is considerable international interest in the adoption of Bayh-Dole-like legislation in other countries. This work explores the potential implications for its implementation in developing country innovation systems.