Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 2: Ordre public and morality issues in patent eligibility

Joseph Straus


Patents, as other intellectual property rights, are generally understood as an instrument of economic policy providing incentives for and rewarding a broad range of useful human activity. Despite this prevailing economic rationale, the roots of, the justification for, and some limitations of exploitation are reasoned ethically. Traditionally, ethical aspects in intellectual property rights have been discussed in the broad context of justification of these rights. Lockean theory of natural rights to the fruits of own’s labour, the doctrine of intellectual property, as well as Hegel’s personality justification, suggesting that the best way of progressing science and arts is to protect scientists and artists from theft, so as to become the basis for learning by others, are such examples. Modern critics of intellectual property rights also put emphasis on ethical aspects when, for instance, claiming that increasing scope of patentable subject matter or legislatively creating new forms of abstract objects, such as plant variety rights, effectively constitutes the creation of capital, which has the danger that it can act as an enormous power resource for a select few.

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