28 May 2011
The Legal Notion of Abuse of Patent Rights
NCCR Trade Regulation Working Paper No 2011/23 by Michelangelo Temmerman
The patent system has reportedly been subjected to various misuses in the past decades. Evergreening, exclusive and limited licensing of diagnostic tests and the destruction of generic medicines are only a few of the instances discussed in literature. Additionally, certain phenomena have also been reported to distance the system as a whole from its intention: incentivising innovation. Here, the keywords are anti-commons, patent thicketing, patent trolling, etc.. In international law, the TRIPs ceilings debate mainly roots in developmental grounds, but also on examples such as these.
The hypothesis is that the flexible nature of the patent system should be strong enough to cope with most situations. In this context, this paper will analyse an additional legal tool that could serve to flexibly deal with possible negative uses of patent system: the notion of abuse of rights. Abuse of rights classically means that a right holder may not make use of his right in an illegitimate manner. The aim is to analyse what this notion entails concretely and what it could mean in/to patent law. After this, we proceed by testing it upon two instances reported to be abuses of the system: the evergreening of patents and medicines in transit-case. Finally, this analysis and its results are being put against the background of the TRIPs-ceilings debate. Here, the thesis is advanced that a good faith interpretation imposes certain ceilings on WTO member states already, and that a contrary application may constitute an abuse or rights.