Révolution technologique, mondialisation et droit des brevets
TECHNOLOGICAL REVOLUTION, GLOBALISATION AND PATENT RIGHTS The patent system is complex and can only be really understood from an interdisciplinary standpoint. The article’s objective is modest – to provide some far from exhaustive comments on the law on contemporary patents without going into too...
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| Формат: | Article ou chapitre numérique |
| Язык: | Français |
| Опубликовано: |
2002
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| Online-ссылка: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Итог: | TECHNOLOGICAL REVOLUTION, GLOBALISATION AND PATENT RIGHTS
The patent system is complex and can only be really understood from an interdisciplinary
standpoint. The article’s objective is modest – to provide some far from exhaustive comments
on the law on contemporary patents without going into too much technological detail.
Intellectual creation is not fundamentally prone to appropriation: though it can easily be
copied or reproduced. Its protection and hence private appropriation come under secrecy
(whenever possible) or the law.
Companies have become the focus of interest for intellectual property systems in general and
patents in particular. The most important changes to the patent system over several decades
were made to systematically strengthen the patent-holder’s rights whilst lessening the
responsibilities and constraints imposed upon him. We can thus legitimately address the
question of whether the general interest is really being served.
We will be making some comments upon matters which have characterised the current
evolution of patent law. Firstly, there is the globalisation of this law. Then we will discuss the
evolution of the criteria for patentability of inventions. In this context, we will tackle the
problems raised by « new areas of protection » such as living matter – biotechnology in
particular, software and financial and commercial systems. Then we will examine related
issues and then attempt to air some more general reflections inspired by this examination.
This study of contemporary patent law will be made in the light of various longstanding
preoccupations fundamental to patent law: such as the encouragement of innovation and the
sharing of knowledge whilst at the same time respecting a balance between interested parties
and public interest. Previously, intellectual property was tolerated in international trade as
a private monopoly, now it is perceived by the companies controlling the major part of
technology as the guarantor of this trade. Hence the patent has moved on from an obstacle to
competition to the status of an instrument against competitors and worldwide competition.
The new function assigned to patents does not place as much importance on the responsibilities
of the holder, specifically the requirement for industrial exploitation, but requires on the other
hand a strengthening of the patentee’s rights at world level. Briefly, the contemporary
evolution of patents has led to protection being widened, requirements weakened and rights
strengthened.
All members of the World Trade Organisation are obliged to adopt legislation highly
protective of intellectual property and in particular inventions to eliminate the possibility of
the legal imitation long time in operation in most countries during some stage of their
industrial development.
What will be the consequences for the development of domestic industries in a large number
of countries included the developed ones. Clearly it is too early to say but we can address the
question of whether we are not moving towards an increasing dualisation of the world
economy : with on one side the few innovating countries where large multinationals are
concentrated providing the majority of innovations and hence holding keys to scientific and
technical progress and on the other the mass of countries – developed included – with little
innovative capacity, no longer able to imitate to learn how to innovate because they are
threatened with serious sanctions by the TRIPS agreement.
Beyond the question of whether the current patent system is a determining factor of higher
American than European competitivity and whether the patent system and in particular patent
holder rights need to be strengthened to foster innovation in our own countries, a more
fundamental issue which needs to be addressed in Europe is whether we need to systematically
follow the United States in its rush to patent with the risk of losing our European « soul» or
do we necessarily have to develop a humanist European model aiming at a balance between
economic, social and ethical considerations.
It should also be pointed out that a distinction should be made between the patent system and
the rules governing it and its operation. |
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