Patents under pressure?

Precipitating this momentous upheaval is a global influenza pandemic in 2012, rocking financial markets and undermining public confidence in patents.

"During the initial outbreak companies refused to lower the prices of existing vaccines and refused to allow generic manufacturers into the market. Complicated overlapping IP rights on different mutant variants of the flu virus severely hampered research into vaccines and therapeutics targeted to the precise strain of the virus. Vaccine developments were delayed by several months."

The result of widespread outrage is that patents are largely replaced in most technical fields as governments side with public indignation to institute compulsory licensing and caps on grants. Adding pullback to push, these exclusive rights soon become too hot to handle for pharmaceutical companies, while other industries pivot to "IP-insensitive areas." Eventually, patent offices are converted into Knowledge Agencies (KAs), and much of IP enforcement is viewed as pointless. This, however, leads to problems including reduced innovation, greater secrecy and politically driven research. 

A long way from irrelevant

Far from being fazed out, patents are more popular and important today than ever. The number of applications globally has consistently increased over the past two decades, reaching a record 3.55 million in 2023. All the while, these rights continue to be licensed and enforced in all technical areas.

Moreover, rather than undermining the innovative process, the growth of patent assertion entities (or "trolls") has, besides its adverse effects, led to new business opportunities by aggregating complementary rights and introducing market intermediaries between small-scale inventors and commercial enterprises. Contrary to what was hypothesized, the wide adoption of open-source software (such as the Android operating system) has not eliminated the need for patents — nor the battles over them.

This expansion in creative and litigative activity has ensured that patent offices remain busy in their core work of searching the state of the art, examining applications and resolving opposition disputes; none has become a pure KA. Having said that, many IP offices have evolved since 2007 and are making much greater use of technology, including artificial intelligence (AI), in their primary operations. What is more, many registering bodies have taken on new roles relating to education, support for small and medium-sized enterprises and research into the impact of IP. Economists and other professionals work closely with offices to publish reports and organize meetings probing the economic significance of IP and patenting trends. There are also programs to support individual inventors, universities and small entities in their interaction with the IP system.

In terms of enforcement, we have seen the launch of the Unified Patent Court in 2023, the reformulation of the United Kingdom's Patents County Court as the Intellectual Property Enterprise Court in 2013 and dedicated IP courts such as those opened in China in 2014. These and other efforts to promote accessibility have ensured that the worst fears envisioned in Trees of Knowledge have not emerged, but broader shifts in society have arguably also played a role.

The anti-IP movement loses steam

The backdrop to the scenario was the growth of a sharing society, the enlargement of the Access to Knowledge (A2K) movement and widespread copyright infringement, notably in the music industry. While piracy remains a major problem for many copyright owners, the last 20 years have seen the emergence of successful streaming services that ensure artists receive at least some compensation (though many would say it is not enough).

In short, society as a whole has not become as powerfully anti-IP as conceived of in the alternate 2025. A good illustration of this is in the reception of Pirate Parties, a worldwide political movement for technologically aware civil rights that, among other things, aims to abolish patents. The scenario foresaw rising sway for the various national Pirate Parties, but their impact in recent elections has been limited. As of this year, they have just one Member of the European Parliament (MEP), Markéta Gregorová of the Czech Republic. It is possible that libertarian politics has moved from attacking IP rights to other pursuing other goals such as data privacy, freedom of information and sustainability.

A similar pattern is evident in the healthcare field. Though the ideation of a global pandemic played out as sadly accurate, the scenario was wrong to conclude that this would diminish trust in the patent system. The COVID-19 outbreak did lead to calls for patents to be bypassed so developing countries could better access vaccines, but these demands were largely met by a World Trade Organization Ministerial Decision in 2022. This action served to demonstrate the extent to which the existing IP framework and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement contain flexibilities to address such global emergencies.

Other areas where the Trees of Knowledge imagined hostility toward the patent system and calls for compulsory licensing, such as in relation to foods, seeds and climate technologies, also proved overstated. On the contrary, bolstered investment in sustainable technologies has led to growing interest in patents in this area, supported by new tools such as the WIPO GREEN database and the EPO's clean energy platform. 

Complementing rather than competing

The resilience of the patent system has been further evinced by the absence of mechanisms to replace it. Trade secrets, design rights, data protection and unfair competition laws all have roles in protecting R&D and traded products, but none provide technical solutions with the legal security and commercial certainty that comes with patents. Insofar as concerns have been expressed about the scope and limits of patent protection in areas such as computer-implemented inventions and biotechnology, these have generally been addressed, if not fully settled, in case law. 

Yet, recent days have witnessed signs that the winds could be turning, at least to a degree. In February of this year, the European Union announced an "initiative to mobilise €200 billion of investment" in AI. Among its objectives, the InvestAI program will fund the creation of four "AI gigafactories" across the EU. Meanwhile, traditionally debt-averse Germany has partially released a spending brake enshrined in its constitution to free up billions of euros for defense, climate technology and infrastructural development.  

Another IP-atrophying influence discussed in Trees of Knowledge is innovation prizes – a supportive practice that has gained impetus in recent years. Some of the most notable launches in this area are the Earthshot Prize (which was launched in 2021 and promises to award £1 million to each of 50 winners over 10 years), the European Inventor Award (now in its 20th year) and the WIPO Global Awards (launched in 2022). However, far from competing with the patent system, as seen in the scenario, such prizes complement it. Indeed, the European Inventor Award requires nominees to hold a patent grant from the EPO, while WIPO Global Awards eligibility rests on engagement with the IP registration system.

The evidence, therefore, points to the conclusion that rather than collapsing in the face of societal and technological challenges, the patent system has sufficiently adapted to a world in constant motion. Today, exclusive rights continue to be essential for researchers and investors, protecting advances made at the bleeding edge of technology as much as novel consumer products in every industry.