A recent stream of the academic literature suggests that there might be discrimination against foreigners in the patent system. Firms of foreign origin may be treated unfavorably compared to local firms when filing for patent protection. Estimates suggest that foreign firms might be as much as ten percentage points less likely to have their patents granted than locals. This article takes stock of the literature. It explains what we know — and don’t know yet — about the issue. It targets intellectual property (IP) professionals, policymakers, graduate students, and anyone with a keen interest in IP, innovation, or technology protectionism.

The national treatment principle

Using the patent system to discriminate against foreigners is as old as the patent system itself. The Patent Act of 1836 set application fees of $30 for U.S. applicants, $500 for any “subject of the King of Great Britain,” and $300 for all other persons. …

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Photo by Fusion Medical Animation on Unsplash

The worry that patents, and other forms of IP rights, are a barrier in the fight against COVID-19 is a legitimate concern. After all, a patent is a temporary monopoly right granted to an inventor that allows her to exclude others from using, making, and selling the protected invention. Excluding others from using bright ideas may seem counterproductive in present times.

Patents are at the core of most innovative systems

Traditionally, patents are seen as a catalyst for research and innovation. In economics, knowledge is seen as a ‘public good,’ meaning that it is difficult to exclude others from using it and that the use by one person does not reduce its availability to other potential users. A given piece of knowledge usually generates more benefits for society as a whole than what a private actor can possibly extract from its creation and commercialization. …


Gaétan de Rassenfosse

I am a Professor of Innovation Policy at Ecole polytechnique fédérale de Lausanne.

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