Justine Pila

European patent law prohibits the grant of a patent for any invention the commercial exploitation of which would be contrary to morality or ordre public (public policy). Since the introduction of the EU’s Biotech Patenting Directive in 1998, the “morality” aspect of this prohibition has been given new life with assistance from the Charter of Fundamental Rights and the Court of Justice of the European Union. In contrast, the “public policy” aspect remains largely dormant owing to its restrictive interpretation over many years by the European Patent Office. If the patent system is to have democratic and social legitimacy in an era of accelerating technological change and uncertainty, that interpretation needs to be revisited and a new method introduced for assessing the moral and public policy implications of patent applications. This should not be difficult to achieve, since such a method already exists and has been deployed in other areas of technology regulation.

This Chapter introduces the law of intellectual property (IP) and its treatment in the Handbook. It begins by considering the different ways and traditions of thinking about IP, the range of subject matter that IP rights protect, and the nature and scope of those rights themselves, including the variety of third-party exceptions to them. It then outlines the domestic, regional, and international laws that comprise the modern IP field, the diverse social and economic forces that motivate those laws, and the variety of actors and institutions involved in shaping them. Finally, the Chapter introduces the structure of the Handbook and summarises each of its individual contributions. The result is an accessible overview of one of the most rich, complex, and important fields of law today, including its social and normative foundations, its emergence and development in different jurisdictions and regions, its substantive rules and principles, and its political economy.

We live in an age in which expressive, informational, and technological subject matter are becoming increasingly important. Intellectual property is the primary means by which the law seeks to regulate such subject matter. It aims to promote innovation and creativity, and in doing so to support solutions to global environmental and health problems, as well as freedom of expression and democracy. It also seeks to stimulate economic growth and competition, accounting for its centrality to EU Internal Market and international trade and development policies. Additionally, it is of enormous and increasing importance to business. As a result there is a substantial and ever-growing interest in intellectual property law across all spheres of industry and social policy, including an interest in its legal principles, its social and normative foundations, and its place and operation in the political economy. This handbook written by leading academics and practitioners from the field of intellectual property law, and suitable for both a specialist legal readership and an intelligent but non-specialist legal and non-legal readership, provides a comprehensive account of the following areas: - The foundations of IP law, including its emergence and development in different jurisdictions and regions; - The substantive rules and principles of IP; and - Important issues arising from the existence and operation of IP in the political economy.

In contrast to the position under European patent and trade mark laws, European copyright and related rights legislation does not currently provide for the exclusion from protection of subject matter that is contrary to morality or public policy. Given the general antipathy that exists to Court of Justice decision-making in the intellectual property field, the criticism generated by the Court’s 2011 decision that human dignity precludes the patenting of any product the preparation of which involves the destruction of a post-fertilization human embryo, and the seeming absurdity of recent suggestions by French public authorities that morality and public policy (ordre public) require burkini-clad beachgoers to undress, the immediate reaction to this position might be relief at being saved the spectacle of the EU exploiting any further opportunity to define the requirements of morality and public policy for its 28 Member States, particularly in a field as important to the creative industries as copyright and related rights. Nonetheless, and as unpopular as existing European social norms and jurisprudence in this area might be, there is a strong case to be made for the introduction of a European morality / public policy exclusion from copyright and related rights. The purpose of this Chapter is to outline that case.

Despite a rich academic literature in the field of IP, there has been little conceptual analysis of the subject matter that IP rights protect and, in reflection of this, little attention paid to the meaning of the terms used to denote those subject matter. This book offers such an analysis, the first of its kind, with the aim of furthering understanding of each IP regime and of IP in general. By means of a nominal word: thing definitional exercise, and with the assistance of certain focal questions derived from theory, it studies the terms in question with reference to their recent use by IP legal officials in order to offer a conceptual understanding of the objects that they denote. The result is a definition of each term with reference to those objects, with a particular focus on the categories and properties of the subject matter protectable by each IP regime, the methods by which those subject matter are individuated within each regime, the relationship between each subject matter and its concrete instances, and the manner in which each subject matter and its instances is known.

It would be impossible in a single chapter to do justice to Lord Hoffmann’s contribution to intellectual property. Given that, my aim in this contribution to his Festschrift is the more modest one of considering certain criticisms that have been leveled at his opinions, and asking whether (to borrow an expression from patent law) they are ‘fairly based’. If the criticisms have a common theme it is one of timidity; a word some may be surprised to hear in connection with Lord Hoffmann. Nonetheless, it has been suggested that some of his most important opinions in intellectual property — for example, those concerning the patentability requirement of novelty and the substantial part test of copyright infringement — have been timid in the face of three things: (a) European authority; (b) IP rights that trammel on public freedoms; and (c) legal uncertainty. In the current chapter I consider these criticisms and reject them. In the argument I make, such ambivalence on these matters as can be read in Lord Hoffmann’s opinions are merely a reflection of his commitment to giving effect to the policy choices of the legislature. I also defend his particular, purposive, interpretive approach on substantive and methodological grounds, and support the ascendancy of proportionality as a methodological tool in IP — including as a test of fair dealing in copyright — as a means of perpetuating and extending its influence.

The purpose of this book is to explore the key substantive, methodological, and institutional issues raised by the proposed unitary EU patent system contained in EU Regulations 1257/2012 and 1260/2012 and the Unified Patent Court Agreement 2013. The originality of this work lies in its individual contributions and uniquely broad approach, taking six different (historical, constitutional, international, competition, institutional and forward-looking) perspectives on the proposed patent system. This means that the book offers a multi-authored and all round legal appraisal of the proposed unitary system from experts in patent law, EU constitutional law, private international law, and competition law, as well as leading figures from the worlds of legal practice, the bench, and the European Patent Office. The unitary patent system raises issues of foundational importance in the fields of patent and intellectual property law, EU law and legal harmonization, which it is the purpose of the book to engage with.