Towards Developing a a Natural Law Jurisprudence in the U.S. Patent System

Article excerpt

There are at least two commonly-held legal misconceptions when it comes to IP law: patent law is a wholly practical area of law created entirely by legislation; (1) and that jurisprudence and the study of legal philosophy and justification is an exercise in esotericism, devoid of any practical significance to those in the practice of law. (2) It is submitted that law and jurisprudence are inextricably connected: "[i]mplicit in every decision where the question is, so to speak, at large, is a philosophy of the origin and aim of law, a philosophy which is however veiled, is in truth the final arbiter." (3)

This Article attempts to correct these misconceptions. Perhaps due to the fact that copyrights are more readily linked to First Amendment rights of speech, copyright law has generated some discussion on natural rights and natural law-type theories. (4) Comparatively, patent law seems to be a poorer cousin as far as any discussion on natural rights or natural law jurisprudence is concerned. (5) It is hoped that this Article will go some way towards remedying this deficiency.

As a prologue, it is appropriate to set out some methodology to determine which is the most satisfactory justification of the patent system since this Article seeks to develop a coherent justification of the patent system.

In the first part, I will argue that a utilitarian justification of the patent system is not a viable explanation. As a theory, utilitarianism holds that all actions are justifiable if they promote the common good. Another interpretation of this theory holds that an action is right or wrong, depending on the consequences of that action. (6) Utilitarians justify the patent system because it tends to produce and promote innovations and inventions. (7) I will examine the cracks in the logic of a purely utilitarian justification of patent law, and I argue that, if one is a deontologist, (8) one cannot at the same time accept utilitarianism as a justification for the patent system.

The second part of this Article describes and critiques the natural rights theories which have been increasingly advanced as a justification of intellectual property rights, namely (1) the labor theory/just desserts theory propounded by the English philosopher, John Locke, (9) and to a lesser degree, (2) the personality theory articulated by Georg Hegel. (10) I will argue that a theory that focuses on natural rights without highlighting natural duties is, at best, incomplete. At the worst, a natural rights theory runs into the same problem of justification-one key criticism being the argument that "rights themselves need to be justified somehow, and how other than by appeal to the human interests their recognition promotes and protects?" (11) This seems to be the uncontrovertible insight of classical utilitarians.

In the third part, I will argue that despite its historical origins, and perhaps, against the wishes of some of America's founding fathers, U.S. patent law contains fertile grounds for the development of a natural law jurisprudence. I will propose a third alternative justification for the patent system: its justification lies in the foundations of justice, as embodied in classical natural law.

There have been some attempts towards introducing natural law into the intellectual property law scene, but mainly in the context of copyright and on the basis of a "no-harm" principle advocated by John Locke. (12) I will explore the classical natural law theories of property, as enunciated by St. Thomas Aquinas (13) and Hugo Grotius, and argue that those theories (in particular, Aquinas's theory) are an advance over pure natural rights or utilitarian theories or even the abovementioned Lockean natural law theory. I will argue that the idea of justice under classical natural law is not merely passive but pro-active because a natural law approach towards patent law would seek to strike a balance between recognition of the rights of an individual inventor and its duties towards his community. …