Applying Institutional Choice Theory to Patent Right – Case of Patentable Subject Matter Debates 2009, 21
Institutional choice theory seems to provide a refreshing perspective to assess the efficacy of the patent system by bringing a process oriented insights and the costs of participation into the discussion. One variation of this approach is to examine how the current shape of a law or a policy is the result of a particular institutional choice. This can be done by analysing the correlating policy tools of institution and the policy substance that are affected by each institutional choice. As multiple institutions are heavily involved both in the affirmation of the right and in the assertion and enforcement of the right, patent policy and law making is one area of law that benefit from the comparative institutional analysis. Institutional comparison requires identification of the status quo (identification of the current path of decision making and institutional choice). This identification may reveal the direction of changes in law and policy, affected by the institutional choice. In other words, comparison identifies defects in current institutional arrangement. Also comparison of institutions holding peer position may encourage competition among the institutions in a positive way. By identifying path of decision making process and comparing institutional competence and capabilities, institutional comparison may reveal incompetent or inefficient decision making process. Thus institutional comparison helps articulation of new law and policies. In this context, this paper aims to identify the institutions that are involved in the operation of the systems of patent for the purpose of comparative institutional analysis and to flesh out the details of comparative institutional analysis as applied to a system of patent and patent right. Additionally, as an endeavour to identify the correlating legal rules and policy resulting from the institutional choice, this paper follows the debates surrounding the patentable subject matter in US, Japan and Europe.
