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Ho on Competing Patent Perspectives

By Lawrence Solum

Cynthia M. Ho (Loyola University of Chicago School of Law) has posted Unveiling Competing Patent Perspectives (46 Houston Law Review 1047 (2009)) on SSRN. Here is the abstract:

This article takes a fresh approach to better understand charged discussions concerning the proper balance of patents and public health.

The basic thesis is that while there is a spectrum of views on patents, they are benchmarked by two distinct and seemingly irreconcilable perspectives. One perspective views patents as a mere privilege granted by a nation and thus inherently subject to limitations to accommodate other societal goals, such as access to medicine. The other perspective views patents as an 'uber-right' in that the property right granted by the patent is seen as stronger than traditional property rights that tend to have limitations. While each view may be generally consistent with prior categories of rights- maximalist or rights-minimalist approaches, this article argues instead that neither is per se correct, and that the more important issue is the impact each view has on how patent rules, including rules under TRIPS, are interpreted.

The recent Thai compulsory licenses of patented drugs are used to illustrate the existence and impact of the competing perspectives. The analysis shows that competing perspectives may result in substantial distortions of the law inconsistent with appropriate legal analysis - even by lawyers. The article also considers how the perspectives may be useful in providing a richer understanding of the history of TRIPS, as well as current conflicts. The article concludes with an explanation of how such perspectives are consistent with lessons from social cognition research and that further exploration of such research may help attain the thus-far elusive goal of abating tensions between patents and public health.

Full post as published by Legal Theory Blog on April 26, 2010 (boomark / email).