Thoughts on patents: three new titles

Here are three recent publications on patent law, each of which in its way is designed to tickle the intellect rather than direct the reader towards best practice.  Each in its way seeks to link significant theory, case law or normative law from the past with our aspirations for the future.

Exclusions from Patentability: How Far Has the European Patent Office Eroded Boundaries? is an intriguing book.  The title is of the "when did you stop beating your wife?" variety, since the erosion of boundaries between the patentable and the ineligible is presumed, and the authorial pairing of Sigrid Sterckx (Professor of Ethics, Universiteit Gent, Belgium) with Julian Cockbain (patent attorney; consultant, Dehns) suggests a collaboration between skills sets and disciplines that have little in common other than their distance from one another. Does this mean that the authors have found two different ways of pre-judging the subject? Not at all.

First, let's look at what the publishers have to say about it:

"Exclusions from Patentability reviews the history of the adoption of exclusions from patentability under the European Patent Convention since its first conception in 1949 through to its most recent revision. The analysis shows how other intellectual property treaties, such as UPOV, the Strasbourg Patent Convention, PCT, the EU Biotech Directive and TRIPS have affected the framing of the exclusions. Particular attention is given to those exclusions considered the most contentious (computer programmes, discoveries, medical treatments, life forms and agriculture) and those decisions which have been most influential in shaping the approaches by which the exclusions have been interpreted. The 'morality' exclusion and the interpretation of the exclusions are discussed critically and suggestions for coherent interpretation are made".

This summary does not do justice to the book, which has tackled the topic from a very clever perspective.  After reviewing the relevance of the "big three" bodies of popular ethics -- of natural rights, distributive justice and utilitarianism -- as justifications for the patent system, the authors give centre stage to the decisions of the European Patent Office itself, dividing them by excluded subject matter and examining the EPO's attempts to resolve conflicts between legal bars to patentability, often ingenious claim-drafting and the need to take direction from the often contradictory demands of policy that underpinned the European Patent Convention itself. The authors conclude with their own recommendations, which make grim reading for anyone looking forward to patenting anything that already exists in nature, not to mention agribusiness as we know and don't often love it today.

This book, incidentally, is the 19th in the series of Cambridge Intellectual Property and Information Law.  

Bibliographic data: hardback xxix + 341 pages. ISBN:9781107006942. Price £75. Rupture factor: low. Book's web page here

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The Future of the Patent System, edited by Ryo Shimanami (School of Law, Kobe University, Japan) this book was first published in Japanese as Kiro ni tatsu tokkyo seido back in 2009 -- so if you have already read the original, the translation may not seem so appealing.  For most of us, however, this is our first opportunity to delve into some of the thoughts and perspectives that nestle between its covers.  There are some notable contributors to this collection, which spans not only Japan but the European Patent Office, China, India, Brazil and the United States.  A somewhat institutional-cum-academic flavour is apparent, since only one of the contributors is described as being affiliated to either a patent-owning business or a firm of patent attorneys -- though this review suspects that at least a couple of the others have, or had, quite significant relations with the commercial world in which patents are exploited and litigated, rather than with their institutional dimensions.

According to the publishers:

"In a rapidly changing world, the underlying philosophies, the rationale and the appropriateness of patent law have come under question. In this insightful collection, the authors undertake a careful examination of existing patent systems and their prospects for the future. Scholars and practitioners from Japan, the US, Europe, India, Brazil and China give detailed analyses of current and likely future problems with their respective systems, and outline possible responses to them".

Before he opened this book, it seemed a little strange to this Kat to be about to view not so much the current future of the patent system but rather the future of its recent past.  Having dabbled in it, he decided that it was actually a review of the past, and particularly the recent past, conducted from the standpoint of the recent past.  There is no major exercise in crystal-ball gazing, nor is any attempt made to synthesise a grand view of the future from the stand-alone chapters written from quite different perspectives by authors with contrasting professional, economic and political backgrounds.  In  a way, the most challenging parts are the Foreword and Preface, which identify problems, risks and weaknesses in the patent system we have today. If there's one thing this book shows, it's how easy it is to demonstrate that, even among well-informed and interested commentators on the patent system, there is ample opportunity for a variety of quite different positions to be taken.

Bibliographic data: xx + 379 pages. Hardback ISBN 978 1 78100 053 3 (ebook ISBN 978 1 78100 054 0). Hardback £95, online price £85.50. Rupture factor: low-ish. Book's web page here.

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A Politics of Patent Law: Crafting the Participatory Patent Bargainis a relatively slender book by Kali Murray, who is an Assistant Professor of Law at Marquette University.  This Kat is particularly interested in small books these days, not just because they are shorter and quicker to read than long ones, bur rather because it is actually more difficult to write them properly.  Ideas and arguments cannot be allowed to wallow in a sea of quotations and references, but have to be honed, sharpened, focused so that they can give a good account of themselves while fitting within their narrow template.  This book, which takes a fresh look at the participatory patent bargain (which is not unlike the good old fashioned 'contract' theory of patent law), works well as a miniature -- and could indeed have been shorter if the author was less thorough in fattening up her footnotes.

This book belongs to quite a lively series, which it shares with some other bright and enthusiastic works. You can check the series out at Routledge Research in Intellectual Property.  Here's what the publisher has to say about it:

"There has been much written on the impact of international treaties like the Trade Related Aspects on Intellectual Property (TRIPS), which laments the failure of patent systems to respond to the interests of a diverse set of non-profit, public interest, and non-corporate entities. This book examines how patent law can accommodate what James Boyle terms a "politics", that is, "a conceptual map of issues, a rough working model of costs and benefits, and a functioning coalition-politics of groups unified by common interests perceived in apparently diverse situations".

A Politics of Patent Law provides a substantive account of the ways in which various types of participatory mechanisms currently operate in patent law, and examines how these participatory mechanisms can be further developed, particularly within a regional and international context. In exploring this, Murray highlights the emergence of constitutional law in international intellectual property law as being at the centre of the patent bargain and goes so far as to argue that the constitutional tradition in intellectual property law is as important as TRIPS. Ultimately, the book sets forth a "tool-box" of participatory mechanisms which would allow for, and foster third party participation in the patent process. This book will be of particular interest to academics, students and practitioners in the field of IP Law."

This is an interesting and thoughtful book, though another of those works that reminds this reviewer how difficult it is for non-US scholars to crash into what often seems to be a US-only debate.  Why is this? Because that jurisdiction is so very well endowed with its own shared conceptual and analytical vocabulary, plus a wealth of generators of academic material and the resources and the perseverance to extend the boundaries of IP debate beyond the horizons with which many of us are so comfortable on the other side of the Atlantic.

Bibliographic data: hardback, x + 136 pages. ISBN 978 0 415 56517 2. Price £75.  Rupture factor: none.  Book's web page here.