The Public Interest and the Construction of Exceptions to Patentee's Rights - A comparative Study of UK and German law

Abstract

The thesis analyses the concept of public interest with regards to exceptions to patent rights. It is submitted that patent rights are generally provided for a utilitarian purpose which is to enable technological advance. This goal is meant to be achieved by providing exclusive rights over the patented invention. Often however public interest considerations also mandate a limit to the exercise of the patent right through exceptions. The thesis maintains that whilst public interest considerations with regards to patent rights and exceptions have constantly been adopted and incorporated through legislation by national (or regional) legislators; international legal regimes are increasingly influencing these considerations. Such supra-national regimes which are relevant to patent law include the TRIPS Agreement but also fundamental rights regimes such as the ECHR or the EU Charter on Fundamental Rights. The thesis will assess how these regimes influence and possibly restrict legislators in providing exceptions to patent rights. It makes significant contributions to the field of patent law by scrutinising what public interest consists of with regards to exceptions to patent rights and will analyse how a third party interest is factored into this process. It will analyse how supranational regimes influence this assessment and therefore identify the impact of the TRIPS Agreement along with the increasingly more relevant discourse on the fundamental rights level. The approaches provided by both of these legal regimes directly influence national legislation which leads to the question: how much flexibility remains to national legislators to provide for exceptions in the public interest without violating international law? This analysis therefore ultimately contributes to the scholarship with regards to the increasing transnationalisation of law. The findings of the thesis will recommend an approach on how legislators can provide for an individually balanced national patent system that is consistent with international norms. This becomes even more important because patent laws have become an important element in bilateral agreements, such as the TTIP currently being negotiated by the United States and the European Union.