A Convert Technological-Bias in Patent Law: The Case of Gene Patents
SPLS IP DISCUSSION GROUP
PhD Candidate Buchmann Faculty of Law - Tel-Aviv University & SPLS Visiting Student
The most fundamental purposes of patent law are expanding humanity's knowledge and promoting innovation. Patent law aims to fulfill these goals in all technological fields, and therefore is characterized with a technological neutrality approach, namely patent law is a one size-fits-all system, aspires to suit all kinds of technologies. However, I argue that a covert technological assumption underlies patent law; According to this assumption, inventions are conceptualized as a fully-revealed object (an invention that is fully comprehended at the time of invention) and not semi-revealed object (an invention that is partially comprehended at the time of inventing, and becomes fully understood only through its commercial utilization). This assumption leads to an inherent incompatibility between patent law and semi-revealed technologies, which prevents patent law from succeeding its goals.
Through the case of gene patents, I come up with a more particular assertion regarding this covert assumption; I argue that the disclosure requirement (which is designated to disseminate knowledge) fails to fulfill its goal when gene patents are at stake, since the disclosure requirement has been structured, due to historical reasons, with a technological paradigm of fully-revealed inventions. Society bestows the patentee a monopoly and expects him/her to pay society back with adequate knowledge; Unfortunately, as I show, current disclosure is short of essential pieces of knowledge regarding the invention.
After revealing the technological assumption and demonstrating its consequences in genetics patents, I conclude that a technological paradigm-shift in patent law is required. I suggest a solution so patent law can cope with this inherent incompatibility.
The study contributes to the theoretical understanding of patent law, through a critical and reflective observation upon it. This understanding advances practical measures for a better realization of patent law's purposes. Moreover, the study holds wider insights regarding the discourse of technology-law interplay, and the 'neutrality' of the law.
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