Revisiting the Principle of Technological Neutrality in Patent Protection in the Age of 3D Printing Technology and Cloud Computing

Abstract

Contemporary patent laws based on the norms of the WTO-TRIPS Agreement seem to be driven toward technological neutrality and universal applicability. In most countries, a technologically neutral standard of patentability applies in a non-discriminating manner, regardless of the field of technology, and regardless of the identity of the inventor and the place of the invention. Neutrality in the substantive aspects of patent laws, among others, now extends to the subject matter neutrality—that the availability of patent protection is not tied to the technological field and neutrality in the enjoyment of the right. In contrast to this neutral outlook of contemporary patent law, subjective policy aspects of patent law have long been part of patent law making. For society, the need for an economic and innovation policy not to subject to a certain field of industry to patenting still exists. As a matter of practice, the need to differentiate various technological fields so as to determine exact parameters for substantive patent examination continues to exist. New emerging technologies such as cloud computing and 3D printing are good examples.This paper reviews the notion of technological neutrality in patent protection and its meaning in the age of 3D printing and cloud computing. Both of these technologies are further instances of computer programming technology in which the industry is currently defining its own field of activity, and where the copying of the expression may lead to the exploitation of ideas, literally. Using these two new technologies as examples of subject matters where not only the standard of patent eligibility but also exploitation is questioned, this paper will examine the exact parameters of technological specificity set down in the TRIPS principle of neutrality of patent protection and explore to what extent and manner the future international patent norm should consider the principle of neutrality.