Révolution technologique, mondialisation et droit des brevets

Abstract

The patent system is complex and can only be really understood from an interdisciplinary standpoint. The article’s objective is modest – to provide some far from exhaustive comments on the law on contemporary patents without going into too much technological detail. Intellectual creation is not fundamentally prone to appropriation: though it can easily be copied or reproduced. Its protection and hence private appropriation come under secrecy (whenever possible) or the law. Companies have become the focus of interest for intellectual property systems in general and patents in particular. The most important changes to the patent system over several decades were made to systematically strengthen the patent-holder’s rights whilst lessening the responsibilities and constraints imposed upon him. We can thus legitimately address the question of whether the general interest is really being served. We will be making some comments upon matters which have characterised the current evolution of patent law. Firstly, there is the globalisation of this law. Then we will discuss the evolution of the criteria for patentability of inventions. In this context, we will tackle the problems raised by « new areas of protection » such as living matter – biotechnology in particular, software and financial and commercial systems. Then we will examine related issues and then attempt to air some more general reflections inspired by this examination. This study of contemporary patent law will be made in the light of various longstanding preoccupations fundamental to patent law: such as the encouragement of innovation and the sharing of knowledge whilst at the same time respecting a balance between interested parties and public interest. Previously, intellectual property was tolerated in international trade as a private monopoly, now it is perceived by the companies controlling the major part of technology as the guarantor of this trade. Hence the patent has moved on from an obstacle to competition to the status of an instrument against competitors and worldwide competition. The new function assigned to patents does not place as much importance on the responsibilities of the holder, specifically the requirement for industrial exploitation, but requires on the other hand a strengthening of the patentee’s rights at world level. Briefly, the contemporary evolution of patents has led to protection being widened, requirements weakened and rights strengthened. All members of the World Trade Organisation are obliged to adopt legislation highly protective of intellectual property and in particular inventions to eliminate the possibility of the legal imitation long time in operation in most countries during some stage of their industrial development. What will be the consequences for the development of domestic industries in a large number of countries included the developed ones. Clearly it is too early to say but we can address the question of whether we are not moving towards an increasing dualisation of the world economy : with on one side the few innovating countries where large multinationals are concentrated providing the majority of innovations and hence holding keys to scientific and technical progress and on the other the mass of countries – developed included – with little innovative capacity, no longer able to imitate to learn how to innovate because they are threatened with serious sanctions by the TRIPS agreement. Beyond the question of whether the current patent system is a determining factor of higher American than European competitivity and whether the patent system and in particular patent holder rights need to be strengthened to foster innovation in our own countries, a more fundamental issue which needs to be addressed in Europe is whether we need to systematically follow the United States in its rush to patent with the risk of losing our European « soul» or do we necessarily have to develop a humanist European model aiming at a balance between economic, social and ethical considerations. It should also be pointed out that a distinction should be made between the patent system and the rules governing it and its operation.