Evergreening Patents and Discontinuous Innovations

Abstract

This article approaches the evergreening patent issue in the context of blocking innovation by seeking to extend exclusivity on patent rights since intellectual property law can provide immunity from competition law enforcements up to some extent. In consequence of evergreening patent practices, patentees extend and, consequently, cement their privileged positions pursuant to their patent rights (in an anti-competitive way). Patenting a follow-on innovation limits generic competition on the old one and therefore, any inconveniences in the patent system would likely distort competition since other manufacturers with the intention to penetrate the same market are restricted from the competition. Yet, innovation remains a crucial factor as technology companies cannot be expected to act responsibly regarding the use of their market powers unless the legal framework for promoting innovation is defined. They might, for instance, formulate a strategy that suppresses their innovations for the same reasons, such as evergreening patents offering new features for their latest products rather than providing compatible updates. In this regard, this study argues whether and to what extent gaps in the current patent system could be filled by the complementary nature of competition law provisions, in particular Article 102 TFEU.