Intellectual Property Through a Non-Western Lens: Patents in Islamic Law
115 Pages Posted: 22 Jul 2021 Last revised: 13 Aug 2021
Date Written: July 19, 2021
The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one fifth of the world’s population.
Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological debates under classical Islamic law, creating an undefined scope of patent protection under international agreements. On the one hand, patents are not mentioned in sources of Islamic law, which, unlike Western systems, gives a religious guide to Muslim societies, and which some Muslim scholars argue create impermissible monopolistic effects. On the other hand, patents should be implicitly derived based on human reasoning of a divine law with theoretically and theologically sound commercial justifications.
This Article’s thesis is that patents are permissible in an Islamic legal system. It develops a positive, normative framework and justifications for the construct of a theory of patents within Islamic law, provides normative implications within a commercial lens, and provides prescriptions for patentable subject matter and public interest considerations in a modern Islamic legal system. Recognizing the role and need of patents in Islamic legal systems is a pressing issue for innovation policy and requires articulation of conceptual, theological, and theoretical principles.
Keywords: Islamic law, Shariah, fiqh, intellectual property, patent law, patents, intangibles, property, usufructs, trusteeship, intellect, public interest, regulatory, commercial assuredness, TRIPS, ordre public, patentable subject matter, Patent Shariah Board, economic development, innovation
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