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At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working requirements might suggest that the requirements are no longer important, national patent systems continue to struggle with the question reflected in the requirements: whether the rights of a patent owner should be limited (and if so, under what conditions) when the patent owner does not practice his invention at all, or does not practice it sufficiently.

This article discusses the origins and development of patent working requirements and examines the rationales for and purposes of the requirements. The article points out the links and interactions between working requirements and the other components of patent systems and shows that all of the components, including working requirements, serve to calibrate the systems to the particular needs of individual countries, including the needs of their complex legal systems. To the extent that international patent law harmonization continues to allow some leeway for countries to calibrate their national patent systems according to their differing national needs, and to the extent that international law has not foreclosed countries’ rights to introduce and maintain working requirements, countries should use working requirements to best serve the purposes of their own patent systems.

Publication Citation

6 UC Irvine L. Rev. 483 (2017).