Contestation Over the Ownership, Use, and Control of Knowledge and Information
Edited by Sebastian Haunss and Kenneth C. Shadlen
Chapter 10: Timing, Continuity, and Change in the Patent System
Sivaramjani Thambisetty It is common, and increasingly so, to encounter absurd patent law doctrine in European and US law. Seemingly simple language in statutes can give rise to convoluted and exceptional interpretations. Thus in Europe ‘animal varieties’ are excluded from patentability, but this does not mean that animals cannot be patented. Computer programs ‘as such’ are not inventions, but there are at least four interpretations of the phrase in UK and European case law. Discoveries are not patentable, but biological material as the basis of biotechnological inventions is commonly patentable. Each of these interpretations is supported by a functionalist explanation – Y is patentable because of X. However, for a long-term observer of the patent system, the quotidian occurrence of such interpretations suggests that functional explanations are not the only possible ones. Given the possibility of alternate legitimate and viable interpretations, it is no longer valid to assume the relative efficiency of patent law doctrine. If we went back and took a look at the emergence and sequential development of some of these doctrines, what would we see? The patent system presents many unusual features that impact on the interpretation and stability of law. This chapter argues that interpretive processes in the patent system are subject to increasing returns, selfreinforcing or positive feedback processes which can distort substantive outcomes, and this explains many of the absurd interpretations seen in this field of law. Consensual goals and criteria are scant in patent law and this, along with the institutional complexity of decision-making,...
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