Some Reflections on Method and Policy in the Crowded House of European Patent Law and their Implications for India

Abstract

This article considers the appropriate method for assessing substantive principles of European patent law, including limits on European patentability. In the argument made, European patent law is a crowded house in which “substantive convergence” around principles is inevitable but unsatisfactory: it will generally be the product of complex institutional dynamics as much as principled policy making, and in the absence of unified methodology and values will fail to ensure coherence or consistency within the European patent system. The implications of this argument with respect to India are then considered, and some reflections offered regarding India's experience of patent law harmonization under TRIPS in comparison with the UK's experience under the EPC and EU law. Among other things, the article considers the possible significance of the emergent focus within Indian and EU patent jurisprudence on "human dignity" as a legal and constitutional basis for denying and limiting patent protection.

Keywords: European patent law, UK patent law, Indian patent law, comparative law, TRIPS, European private law, human dignity, public ordre/morality