Abstract:
The basic principle of patent law is to provide the innovator a negative right to exclude others from making, using, exercising, offering to dispose of and marketing the invention within a limited statutory period. Two aspects of patent theory have polarised research since the Schumpetian era; namely, the balance between this individual right and the societal loss and the level of patent protection that incentivises innovation. Only in recent times has there been research activity on the problem of the shortened patent life and optimal patent design. This empirical study sought to determine the optimal patent protection; thus patent breadth and patent length that create patent value for touch-screen handsets without increasing societal loss. In previous literature mathematical modeling was used as a methodology to determine the optimal patent breadth and patent length. In this study, a quantitative method was used with empirical evidence collected from all patent attorneys practicing in South Africa. The study provides empirical evidence that patent breadth and patent length should vary based on product sectors as a „one-size-fits-all‟ patent protection approach is outdated in product sectors characterised by rapid technological innovation. From the study results it was concluded that long-lived narrow patents are optimal for touch-screen handsets. Lastly, that there are more underlying factors that contribute to patent value in touch-screen handsets that should be investigated further. Copyright
