INTRODUCTION

Do legislators apply classical command-and-control mechanisms to spur the development of knowledge production? Or do legislators rather regulate by design, using architecture to steer innovative behaviour? Or do they turn to consensus-based tools to achieve a balance between public and private interests? The present chapter aims to shed more light on the wide spectrum of instruments used by national legislators by looking at the findings in the national reports through the prism of regulation theory.

In section II, we dissect the definition of regulation. To that end, we first delve into the definition provided in regulation scholarship, and then assess to what extent current intellectual property (IP) law, and patent law in particular, fit this definition. In section III, we focus on the various regulation theories which have been set forth in regulation scholarship and in legal discourse and examine the interaction and/or overlap between these two narratives. We then examine the category of regulation theory to which the current patent system belongs. In section IV, we turn to instruments which are being put to use to achieve regulatory goals, as described in regulation scholarship. We then turn to the patent system, to investigate what type of regulatory instruments are being applied, illustrating this explorative analysis with cases from patent law in general, and the cases discussed in the national reports in particular.

The major focus within the present chapter is on information production and patent law, even though we might shift to the analysis of the patent system at times, as there are overlaps between the two concepts. We define patent law as the set of rules, promulgated by the (national, European or international) patent legislator and interpreted by (national and/or European) courts. We define the patent system as the way in which patent law is being construed, interpreted and implemented by, respectively, legislative, jurisprudential and administrative/executive institutions, and the interaction between those distinct branches of government. Some scholars would argue that the patent system also includes individuals, who assist within all those institutions in shaping relevant rules, thus encompassing legislators, judges, patent examiners, patent attorneys, etc.