Introduction and overview

Among intellectual property rights, patents, as exclusive rights of exploitation with blocking effects, occupy a prominent place and are characterized by many peculiarities: they reveal the closest link to most advanced technological and scientific developments; they play a crucial role in the innovation process as an incentive to invent, innovate and invest in high risk research and development (R&D); and they are an important factor in international economic relations. Whereas the importance of patents in all these respects is not disputed, much controversy exists whether their respective economic impact is beneficial and if so, for whom.

As far as the results of the most advanced scientific and technical developments, such as DNA-sequences, embryonic stem cells, gene therapy, genetically modified plants or animals, or computer software and business methods, are concerned, the question arises whether they are eligible for patent protection, and if eligible, under which conditions. Moreover, does patent law take into account aspects of ethics, protection of human, animal or plant life, or health and the environment? Does, and if so how does, the law resolve the tension between the patent as an exclusive right with blocking effects, often misleadingly called “monopoly,” on the one hand, and competition, a fundamental pillar of the market economy, on the other? In other words, how are patents treated by anti-trust law?

Finally, how can one protect patents internationally? Which instruments of international public law serve patent protection and, what is their economic impact?