Current Patent Laws Cannot Claim the Backing of Human Rights

Chapter 9 in Intellectual Property and Human Rights: A Paradox, ed. by Willem Grosheide (Edward Elgar Ltd., 2010)

Boston Univ. School of Law, Public Law Research Paper No. 13-43

20 Pages Posted: 30 Aug 2013 Last revised: 15 Oct 2013

Date Written: August 29, 2013

Abstract

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent law and and the Covenant. Current patent laws grant patents to people who are not ‘authors’ whom the human rights regime is designed to protect, and current patent laws refuse to recognize as patent holders many people who would indeed be authorial inventors.

Keywords: patent law, intellectual property, human rights, authorship, inventorship, copyright, John Locke, Internat'l Covenant on Econ., Social and Cultural Rights (ICESCR), developing nations, pharmaceutical patents, independent invention, Lawrence Becker, natural rights, moral entitlements, first to file

JEL Classification: K11, K19, K39

Suggested Citation

Gordon, Wendy J., Current Patent Laws Cannot Claim the Backing of Human Rights (August 29, 2013). Chapter 9 in Intellectual Property and Human Rights: A Paradox, ed. by Willem Grosheide (Edward Elgar Ltd., 2010) ; Boston Univ. School of Law, Public Law Research Paper No. 13-43. Available at SSRN: https://ssrn.com/abstract=2318080

Wendy J. Gordon (Contact Author)

Boston University School of Law ( email )

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