Intellectual Property and Human Rights
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Intellectual Property and Human Rights

A Paradox

Edited by Willem Grosheide

In the modern era where the rise of the knowledge economy is accompanied, if not facilitated, by an ever-expanding use of intellectual property rights, this timely book provides a much needed explanation to the relationship between intellectual property law and human rights law.
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Chapter 12: Human rights' limitations in patent law

Geertrui Van Overwalle


12. Human rights’ limitations in patent law Geertrui Van Overwalle* INTRODUCTION The relationship between human rights and intellectual property (IP) rights has been undertheorized for a long period. IP rights have remained a ‘normative backwater’ in the burgeoning post-World War II human rights movement.1 Only over the last decade, human rights discourse has gained wider attention and commentators have started to explore the relationship between IP and human rights in more detail.2 Two major approaches can be witnessed. A first school of thought takes the view that human rights and IP are in fundamental conflict. Strong IP protection is undermining, and therefore incompatible with, a broad spectrum of human rights obligations, especially in the area of economic, social and cultural rights. This approach can be witnessed in Resolution 2000/7, which stipulates that ‘Actual or potential conflicts exist between the implementation of the TRIPs Agreement3 and the realization of * Professor of Intellectual Property Law at the University of Leuven, the University of Brussels and the University of Liège (Belgium); and professor of Patent Law and New Technologies at the University of Tilburg (The Netherlands). The present research was supported by the the Vancraesbeeck Fund. Special thanks go to Paul Lemmens for his valuable comments on an earlier draft of this chapter. 1 Helfer, L.R. (2006), ‘Toward a Human Rights Framework for Intellectual Property’, Vanderbilt University Law School Public Law and Legal Theory. Working Paper 06-03 (available at, last visited June 2009). 2 Cf. Helfer, L.R. (2003), ‘Human...

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