Malleable Nature of Intellectual Property
Taken from “A global solution for the protection of inventions“, pp. 1-8.
“Although some argue that the recognition of intellectual property rights’ first expressions started way before the industrial revolution and the appearing of the European printing press, the paradigms of the regulations used today are somehow routed in rules that appeared then.[1] Since the European appearance of the press and later under the socioeconomic phenomenon known as the industrial revolution, the regulations of different European countries gradually established protection for products of the intellect.[2] Throughout history there are several examples of great inventions, but attributing an economic value to the object that results from applying the invention and not to the invention material concretion itself was constituted since then on.[3] Legal systems and statutes to regulate the legal protection of intellectual property in general and specifically of inventions were many and varied. Now there is a clear tendency to universalize and harmonize the criteria, which makes sense, given the current state of communications and the increasing incidence that comes from this protection in world trade.
Possibly the first Enlightenment regulations regarding the matter of copyright/droit d’auteur were the provisions of 1627 of Philip IV of Spain (legislation extended to the Spanish America) and the statute of Queen Anne of 1709 in England. Subsequently in France the Loi du droit d’auteur of 1791 stands out, issued as a result of the French Revolution. Undoubtedly the Paris Convention for the Protection of Industrial Property, established in 1883, was the focus point when it comes to industrial property.
People since long ago have agreed to refer to this type of protection with the name property (the previously mentioned rules are examples of that) with the objective of assimilating these rights to the “stronger organized protection within pecunius law.” (Gran Enciclopedia Rialp 1991). Nevertheless, these rights differ a lot from property over tangible goods. “Over the years the word ‘property’ remained just by inertia but with the conviction that the right corresponding to the holder of the patent was not exactly a property right.” (Correa and Bergel 2002, 20). Actually the right of the inventor is not property per se but a “simple legitimate interest.”[4]
The very nature of intellectual property marks two insurmountable differences with the traditionally conceived property—the lack of materiality of the object and the lack of perpetuity of the right. This is why in regard to a patent conceptual limit (the determination of the object of protection) and time limitation (the duration of the protection) rules must be made with care and good judgment, especially in a global legislation. It is humankind that has understood as relevant the granting of an exclusive right to the inventor, and therefore, it is logical that humanity itself limits the scope and duration of a patent to the extent deemed as appropriate to assure that collective interests, such as health, remain unaffected. Technological development that allows a greater general welfare is undoubtedly a global objective, but in which regard a clarification is worth: the overall objective is general welfare and not technological development itself.
The nomen juris that is given to this type of protection is not decisive, although it has raised a heated debate. What is important is the content of the right. It should be made clear that its protection does not come from a natural and undeniable element and must only remain if it contributes positively to society. The precedent case law of the US has embraced this criterion, as manifested by Carlos Correa and Salvador Bergel. “The Supreme Court of the United States of America has rejected the doctrine of natural law or absolute property as the foundation of patents [ … ] the inventors would enjoy a subjective right, under the reasonable regulations enact by the Legal Power, and not as an absolute and exclusive right.”(Correa and Bergel 2002, 32) The word property, when applied to intellectual creations, represents a rough approximation of what is traditionally viewed as property. On this basis and with the exceptions that might be, it is inevitable to call the protection for inventions and other intellectual objects of protection as property under the widely used term.
Intangible property or intellectual property goods (whatever the name they are identified with—patent, copyright, utility model, plant variety rights, etc.), unlike material goods, are rooted in regulations that are created for the purpose of their recognition. Thus, they are subject to the discretion of human conceptions.[5] They are of a malleable nature. Not surprisingly the characteristics that define a patent, for example, have mutated repeatedly in its relatively short legal history.
As a proof of the previously mentioned, it is worth noticing that the previous Spaniard patent legal system (as did the British system) established the patentability in Spain of inventions made by others in foreign countries. Spanish law encouraged this sort of appropriation of others’ inventions, granting exclusivity for ten years to the introducer of such inventions not practiced yet in Spain. This protection was called in the Spanish regulations patente de introducción (introduction patent)—a patent for the introduction of inventions. This will be an impossible protection in the eyes of the current criteria. “This modality was used in European countries to promote national industrial development in the eighteenth and nineteenth centuries. In the Statute of English Monopolies of 1623/4, this can be appreciated as a usual form of patents granted then.” (García-Huidrobo 1992, 21).
This denotes the subjectivity inherent to the protection for inventions, which is a consequence of the very nature of intangible rights. This feature of the industrial property rights opens a wide door for analyzing the system that is currently the universally valid.[6] Other historical evidence of the conceptual drifts that the regulation for patents was subject to will be evident in the narration of events that are discussed in the next subchapter related to the way that the current global legal system came to be.
It is clear that the protection of inventions, because of its intangible nature, is susceptible to the discretion of human conceptions. Defining its subject matter and duration (to mention only some relevant aspects within the legal system of patents) is trusted to the regulation produced to that effect by humankind, which can be of the most varied nature. [7] “Even by putting ourselves in the extreme and outdated thesis that, based on the existence of a natural right the inventor is recognized with a real property right over his invention or discovery (which as explained is not applicable), we cannot fail to recognize the power of the legislator to regulate or limit it within parameters of reasonableness.” (Correa and Bergel 2002, 20) This leads to the conclusion that if humankind generates a worldwide protection of industrial property, considering that it suits its interests, it will be wrong that any expression of this property affects humanity in any way (in issues of health, for example) or at least that its negative impact would be greater than the benefits that humans receive by protecting it.
As Desterbecq and Remiche stated, “Traditionally the patent system has been designed as a kind of contract between the holder of the patent and the community nationwide.”(Remiche and Desterbecq 1997, 249) According to this view and taking on account the universalization tendency of this matter, this kind of contract should be between the holder of a patent and the global community. Therefore, the duration granted to a patent must be assumed by all mankind with the introduction of proportionality, as this investigation advocates.
[1] According to Nuno Pries de Carvalho, for example, the Code of Hammurabi had references to what today will be known as trade secrets. As an example of a study about the historical evolution of the system of protection of patents and trademarks, it is worth mentioning the one from Nuno Pries de Carvalho (Pries de Carvalho 2009)
[2] The invention of printing press is attributed to the Chinese Bi Sheng between 1041 and 1048, before the German Johannes Gutenberg made it known in Europe in 1450.
[3] Without intending to delve into the detailed historical evolution of the system of protection of intellectual property in general and of patents in particular, it is safe to say that a real and continued application of intellectual property rights arrived relatively late to the legal scope. They are not rooted in ancient Roman law like most legal conceptual archetypes still existent today, at least in those countries that are part to a greater or lesser extent of the Western legal culture. This occurs from an ecurocentric point of view because a real need for protection is only felt in literary works since the European appearance of the printing press and for inventions and trademarks since the beginning of technical civilization and mass consumption and production—ergo, the industrial revolution. Thus, gradually advancing from the sixteenth century, European monarchs began to grant at their discretion printing privileges for a number of years to the authors in some cases or to the owners of the printing presses and even to booksellers in other cases. Subsequently this privilege was granted to creators of certain industrial designs and in some case to inventors. Later with the development of legislations this privilege became habitual, regulated, and stable and of automatic granting or granted previous authority verification. The recognition of the right of state tutelage in favor of holders of intellectual rights is materialized first in favor of literary work (authors) and later in the nineteenth century extended to what is now known as industrial property.
[4] According to Pugliatti it is just a simple legitimate interest or a kind of legal monopoly (Pugliatti 1954, 19).
[5] Intangible rights: “Those not found in nature, but creation of man; not physically perceptible, but through their material extrinsic reenact into a physical thing, a conduct pattern or an energy (at least, the energy of the sound of the word). This extrinsic expression, even translated into one thing (one thousand copies of the book, or the thousand units that reproduce the invention), is a mere realization of an archetype of an intellectual character, which precisely because it does not identify with the things that constitute its extrinsic expression, and unlike material goods, may remain the same and manifest itself in any number of those.” (Gran Enciclopedia Rialp 1991)
[6] “The sad truth is that no one in the developed world at the moment really knows what a proper functioning patent system for the twenty-first century should look like. There are as many different proposals and solutions on the table as there are thinkers and investigators.” (Reichman 2006, 6)
[7] The holder of the patent has a number of powers and rights, in which exercise lays its property (Casado 2000, 31). In other words a patent is the ownership over a collection of rights granted in favor of who embodied concretely or materially a new idea applicable to human activity. The primary or fundamental right that is acquired through the registration of a patent is undoubtedly the right of exclusive exploitation. Without exclusive exploitation the patent right will be disfigure in such a way that it could no longer be called patent. Another important right is the right of paternity over the invention, which is a moral right. By this right the authorship of an invention will be recognized per saecula saeculorum, regardless the assignment, release, sales, exhaustion, expiration, etc., of a patent. This is a natural right. It is discussed if in industrial property moral rights exist. Because of that intellectual property importance is imperative in the economical factor the laws usually highlight only its patrimonial face, notwithstanding the existence the moral right of recognition of the inventor as the creator of his or her invention.”