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Thambisetty, Sivaramjani --- "Timing, Continuity, and Change in the Patent System" [2009] ELECD 536; in Haunss, Sebastian; Shadlen, C. Kenneth (eds), "Politics of Intellectual Property" (Edward Elgar Publishing, 2009)

Book Title: Politics of Intellectual Property

Editor(s): Haunss, Sebastian; Shadlen, C. Kenneth

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443037

Section: Chapter 10

Section Title: Timing, Continuity, and Change in the Patent System

Author(s): Thambisetty, Sivaramjani

Number of pages: 28

Extract:

10. Timing, continuity, and change in
the patent system
Sivaramjani Thambisetty

It is common, and increasingly so, to encounter absurd patent law doc-
trine in European and US law. Seemingly simple language in statutes can
give rise to convoluted and exceptional interpretations. Thus in Europe
`animal varieties' are excluded from patentability, but this does not mean
that animals cannot be patented. Computer programs `as such' are not
inventions, but there are at least four interpretations of the phrase in
UK and European case law. Discoveries are not patentable, but bio-
logical material as the basis of biotechnological inventions is commonly
patentable.
Each of these interpretations is supported by a functionalist explana-
tion ­ Y is patentable because of X. However, for a long-term observer of
the patent system, the quotidian occurrence of such interpretations sug-
gests that functional explanations are not the only possible ones. Given
the possibility of alternate legitimate and viable interpretations, it is no
longer valid to assume the relative efficiency of patent law doctrine. If we
went back and took a look at the emergence and sequential development
of some of these doctrines, what would we see?
The patent system presents many unusual features that impact on the
interpretation and stability of law. This chapter argues that interpretive
processes in the patent system are subject to increasing returns, self-
reinforcing or positive feedback processes which can distort substantive
outcomes, and this explains many of the absurd interpretations seen in
this field of law. Consensual goals and ...