Maximising Permissible Exceptions to Intellectual Property Rights

Christie, Andrew F.

doi:10.4337/9780857931542.00015

Cited by 12 publications

(4 citation statements)

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“…So, any subject matter that falls under this clause is prohibited from patentability. This limitation is referred to as the "exclusion to patent rights" [24]. Typically, the exclusion of a patent right extends to public health, morality, safety, or contrary to the State's interest or inventions that contravene the law or societal ethics or cause harm to public interests [25].…”

Section: Rationale Of Ordre Public and Moralitymentioning

confidence: 99%

Biotechnology patenting: Limits of ordre public and morality provisions

Mafu

2023

Preprint

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The world is experiencing explosive technological progress in biotechnology, leading to unprecedented benefits such as improved or new medicines, treatments, and processes with the potential to transform and save human lives. However, as novel technological frontiers are crossed, there have been increased concerns about how biotechnology inventions are granted or refused exclusive patent protection. Besides meeting patentability requirements, various countries consider most biotechnology inventions contrary to their ordre public and morality provisions and exclude them from protection using intellectual property rights. Notably, the meaning of these provisions is dynamic and varies from jurisdiction to jurisdiction, thus affecting the patentability of biotechnology inventions. Adopting the doctrinal research approach, we comparatively study various case laws, statutes, and legal sources from international, national and regional patent laws, including the impact of patent flexibilities on biotechnology inventions. Furthermore, we investigate the limit imposed by ordre public or morality provisions as grounds to refuse to grant biotechnology patents to benefit the community’s interest and invalidate it for the inventor. We review the current landscape for ordre public and morality limits on the patentable subject matter by analyzing relevant patent disputes and the impact of the decisions. We argue that ordre public and moral exclusions or exceptions have become entangled in Patent Law, so they must be interpreted and applied such that their outcomes do not hamstring patent granting for disruptive biotechnology inventions because of their more expansive ethical, societal, and legal effects. Moreover, this might require a critical demand to deal with controversial biotechnological issues on case-by-case decisions instead of a broad, inflexible, and comprehensive ban. While there is a need to adapt the ordre public and morality exclusions to accommodate biotech inventions, Patent Officers and Courts must be resourced to handle these exclusions. Most significantly, this study exposes the interplay and impact between patent laws as a commercial tool and the role of regulatory systems in the administration of biotechnology inventions. This is crucial to ensure fair and equal access to the merits of using biotechnologies for scientific development.

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Section: Rationale Of Ordre Public and Moralitymentioning

confidence: 99%

Biotechnology patenting: Limits of ordre public and morality provisions

Mafu

2023

Preprint

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“…That is to say, an exception cuts back on the IP right-holder's right, by removing a part of it." 114 An exception to avoid infringement is, therefore, expected to conflict with the normal exploitation of a patent under Art. 28 (making, using, offering for sale, selling or importing).…”

Section: Experimental Use Exceptionmentioning

confidence: 99%

“…117 The only way to give effect to exceptions is by way of national law. 118 The patent shall have no effect with respect to any act including testing, using, or making the invention solely for purposes reasonably related to the development and submission of information required under any law of (country) or of another country that regulates the manufacture, construction, use or sale of any product. 119 In Carlos Correa's view, third parties' legitimate interests could "include those of follow-on inventors, competitors, and users, as well as the interests of society at large, for instance, in addressing a public health crisis or in ensuring the advancement of science and technology."…”

Section: Experimental Use Exceptionmentioning

confidence: 99%

Patent law and 3D printing applications in response to COVID‐19: Exceptions to inventor rights

Abbas

2022

World Intellectual Property

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Three‐dimensional (3D) printing technology offers promise in relation to much‐needed health technologies associated with COVID‐19. Additive manufacturing, which allows the rapid conversion of information from digital 3D models into physical objects, is uniquely well‐positioned to address the shortage of critical medical devices by enabling the fabrication and repair of medical devices in a timely and cost‐effective manner. This paper examines the issue of patent rights being at odds with access to critical 3D printable health technologies during COVID‐19 crisis. It undertakes an in‐depth analysis of the right to repair and calls for a clearer recognition of the right to repair exemption at the global level. It also evaluates the private and noncommercial use exception and proposes the use of a reasonably broad form of this exception to make it practically significant. It also considers the experimental use exception and calls upon World Trade Organization Member States to provide legislative clarity that a defense of an experimental use extends to repairs. This study is crucial because access to necessary health technologies, in a pandemic context, is a matter of life and death for millions of patients around the globe, especially for underprivileged patients in resource‐constrained countries.

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“…This means that patents cannot be granted for the subject matter that falls under the patent clause. This type of limitation to patent rights is known as “exclusion to patent rights” (Christie, , p. 121). Exclusions to patent rights are not new.…”

Section: The Rationale Of the “Ordre Public” And “Morality” Clause Inmentioning

confidence: 99%

The limits of “ordre public” and “morality” for the patentability of human embryonic stem cell inventions

Prifti

2018

World Intellectual Property

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Inventions involving human embryonic stem cells (hESC) have unprecedented potential to improve human life through discovery of new drugs and treatment of incurable neurodegenerative diseases, but at the same time, the use of human embryos in research gives rise to contrasting ethical, moral and religious views on the patentability of such inventions. Whether and to what extent patent offices should take these views into account is an open question. The “ordre public” and “morality” clause in patent law may help us find an answer, but neither the legislator nor courts have clarified the meaning of these vague terms. Judicial interpretation has sometimes increased their ambiguity and raised legal uncertainty for the patentability of hESC inventions. This situation may be desirable in some cases, but not in others where the principles of the legal system as a whole come into play. This paper will shed light on the meaning of “ordre public” and “morality” for hESC inventions by examining patent law in the broader legal framework and emphasizing the interconnectedness of national legal systems in a global market as well as the common interest in healthcare innovations.

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Maximising Permissible Exceptions to Intellectual Property Rights

Cited by 12 publications

References 0 publications

Biotechnology patenting: Limits of ordre public and morality provisions

Biotechnology patenting: Limits of ordre public and morality provisions

Patent law and 3D printing applications in response to COVID‐19: Exceptions to inventor rights

The limits of “ordre public” and “morality” for the patentability of human embryonic stem cell inventions

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