Patent as Exclusion
Monsanto Patent for glyphosate-resistant plants (US version)
A patent is effectively a statutory right—created and enforced under the federal Patent Act, RSC 1985, c P-4—to exclude others from the products of cultural, scientific and technological invention. Patents given their “owners” a time-limited, exclusive right to make, construct, use and sell the subject matter of the patent.
The basic rationale behind patent rights is one about economic incentives. As an intangible good, the inventive idea or design that motivates a patent is by nature non-excludable: once the invention has been created and made public, it is essentially costless for others to reproduce that idea or design in order to make their own products. Because inventions often require considerable up-front and sometimes risky investments, the rationale goes, exclusive patent protections are needed in order provide creators with sufficient financial incentives to create in the first place. According to this argument, if the right to exclude via patent did not exists, creators would have no motivation to produce their intentions and society would suffer as a result.
While a large body of recent research and thinking in the field of intellectual property law has explored other, non-financial reasons why creators produce a whole range of cultural and scientific products, the central economic rationale described above remains at the heart of modern patent law in Canada.
Notice that this rationale for patent rights is heavily functionalist in character: patents exist—and are enforced by the courts—explicitly to structure and incentivize individual behaviour.
Patents in Hollywood #
The film PERCY, released in 2020 and starring Christopher Walken, dramatized the events behind Monstanto v Schmeiser. The trailer below is worth watching for its attempt to capture the broader social and political significance of the case during the time it was making its way through the courts.