Human Rights’ Limitations in Patent Law
INTELLECTUAL PROPERTY AND HUMAN RIGHTS: A PARADOX, pp. 236-271, Willem Grosheide, ed., Edward Elgar Publishing, June 2010
23 Pages Posted: 5 Dec 2010 Last revised: 25 Dec 2015
Date Written: June 4, 2010
The relationship between human rights and intellectual property (IP) rights has been under-theorized for a long period. IP rights have remained a “normative backwater” in the burgeoning post-World War II human rights movement. Only over the last decade, human rights discourse has gained wider attention and commentators have started to explore the relationship between IP and human rights in more detail. Two major approaches can be witnessed. A first school of thought takes the view that human rights and IP are in fundamental conflict. Strong IP protection is undermining, and therefore incompatible with, a broad spectrum of human rights obligations, especially in the area of economic, social and cultural rights. This approach can be witnessed in Resolution 2000/7, which stipulates that “Actual or potential conflicts exist between the implementation of the TRIPs Agreement and the realisation of economic, social and cultural rights.” Resolving this conflict lies in the recognition of the primacy of human rights law over IP law and in viewing IP as instruments designed to fulfill human rights objectives. A second way of thinking claims that human rights and IP are essentially compatible and can coexist. Indeed, human rights and IP focus on the same fundamental question and share the same goal. Both human rights and IP rights aim at enhancing welfare and the benefit for society. Both legal regimes equally try to define appropriate scope of private rights, while safeguarding public interest. A clear exponent of this attitude is reflected in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The present paper aims at exploring the delicate relationship between the human rights pantheon and the patent framework in more depth. The normative perspective underlying the present paper is that human rights can coexist with IP rights. Human rights are valuable and necessary complements of patent rights. Human rights serve as a counter balance of patent rights when centering too one-sidedly on trade, access to markets and economic calculus. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights. Patent law should be moulded as a human rights compliant legal framework to promote innovation. The normative claim put forward in the present paper is based on a reassessment of the notion of public interest in patent law and an analysis of human rights treaties. Human rights can be factored into patent law, through the gateway of public interest. A post-modern interpretation of public interest will prove to offer a more then skeletal basis for taking into account human rights into patent law, and to have prompted new human rights standards in the patent law system.
The present paper focuses on human rights and human values, and draws attention to civil, political, economic, social as well as cultural rights. Human rights and values which are considered here as particularly relevant are human dignity, the right to food, the right to informed consent, the right to protection, the right of access to public health, the right to education and research, and the right of access to information. These human rights and values fulfil different functions in a patent law context. Some rights and values, such as human dignity and the right to food, act as a basis to limit the coming into existence of patent rights in certain fields. Other rights, such as the right to informed consent and the right of protection as translated in an origin requirement, act as a means to implement procedural guarantees in the patent application procedure. Yet other human rights, such as the right of access to public health and the right to education and research serve as limitations with regard to the exercise of patent rights. Although the right of access to information fits into this last category at first sight, it has a somewhat ambiguous position in the human rights and patent rights debate. Before embarking on a further analysis, some clarification regarding the concepts and terminology used is offered.
The paper concludes that human rights and IP, two bodies of law that were once strangers, have now become increasingly intimate bedfellows. Human rights should feed into patent law in complementary manner. Patent law is an autonomous legal system of its own kind, with an intrinsic raison d'être. It is an instrument, a legal tool, aiming to serve both private and public objectives, both reward for innovation and societal well being through the production of new goods and services. Human rights are valuable and necessary complements of the patent system. They feed into the objective of public interest in patent law. They serve as a counter balance of patent rights centering too one-sidedly on trade, access to markets and economic calculus. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights.
As has become clear from the exploration in the present paper, the respect for human dignity introduces certain limits on patentable subject matter in patent law, in order to safeguard the rights of human beings and human embryos. The right to food opens an avenue to impose restrictions in patent law in the interest of consumers. The right of informed consent invites patent law to be cautious in respect of the rights of donors of human biological material, testees and patients, and the rights of traditional knowledge holders. The human right to access to public health safeguards the rights of patients, by limiting the rights of patentees through the introduction of a compulsory license system, whereas the right to research is safeguarded for researchers entering well defined areas of exploration. Finally, the right of access provides adequate trajectories for innovators or users, to have efficient access to technological innovations and improvements through the disclosure requirement.
When assessing patent law through the lens of human rights law, some issues remain unresolved. First, some unclarities as to concepts and scope live on. Second, the lack of enforceability of various human rights is problematic. Third, factoring human rights into patent law, might give rise to increasing legal uncertainty. Given the expanding nature of human rights and applying a universal and holistic approach of human rights in a patent law context might run counter to legal certainty. Legal certainty might require a more distinct approach, where a clear and limited catalogue of human rights, which have to be taken into account in a patent context, is provided. However, designing a closed list of human rights seems inadequate, as patent rights may be limited and restricted for a multitude of reasons (see article 4 IVESCR). Fourth, the relationship between human rights and human values remains unclear and controversial. This might also create problems of legal (un)certainty as well. Last but not least, it is not yet fully clear what the exact relationship is between the well know twin concept in patent law of ordre public & morality, and human rights.
Notwithstanding some remaining unsettled issues, great effort should be put into taking full account of human rights considerations in patent law and into making a human rights approach in patent law even more explicit and exacting. For patent law to be widely accepted and generally recognized as a tool fostering both private and public interest, it is vital that current patent law regimes are inextricably linked with human rights discourse, and that human rights assist in defining the utter limits of patent rights.
Keywords: Patent Law, Human Rights, Public Interest, Human Dignity, Right to Food, Informed Consent, Access to Public Health, Eduction And Research, Access to Information, Oviedo Convention, EU Biotechnology Directive, TRIPS Agreement, Doha Declaration
JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L 65, O13, O31, O32, O34
Suggested Citation: Suggested Citation