A legal solution to a real problem: the interface between intellectual property, competition and human rights
This thesis argues that the existing laws of competition and human rights can be combined to limit the rights of owners of intellectual property (IP). The need for this thesis arises from concerns about the impact of enforcement of IP rights, say on patients needing essential medicines or students seeking to obtain important material from the internet. Some steps have been taken to address these concerns, with the World Trade Organization Doha Declaration on the TRIPS Agreement and Public Health and the One Lap Top Per Child project. Yet the owner of a national IP right can still object to a valuable project if it comes within the scope of that IP right, say the supply of providers of emergency services with the only communications technology which will work in extreme conditions in air ambulances. IP law should not be viewed in legal isolation, however, and concerns about the impact of enforcement of IP can also be framed in terms of human rights and competition. This work argues, with a focus on the jurisdictions of the United Kingdom (UK) and on patents, that courts considering patent actions can and must, without the need for any legislative or policy change, combine the UK Human Rights Act 1998 (HRA), the European Convention on Human Rights (ECHR), the UK Patents Act 1977 (PA) and article 82 EC Treaty such that in some limited cases there will be no finding of patent infringement. A Human Rights Emphasis is proposed as a means of evaluating what is meant in a particular case by compatible or incompatible with Convention rights in sections 3 and 6 HRA, given that the potentially conflicting rights to property, life and expression could be engaged in a patent action. The Human Rights Emphasis is then applied to the results of a creative yet legitimate approach to interpretation of the infringement provisions of the PA, to determine whether there should be a finding of infringement. It is also argued, combining the Human Rights Emphasis and a broad approach to abuse of a dominant position and its relationship with IP, that it can be a prohibited abuse of a dominant position to raise an infringement action when the technology the subject of the patent is a market in itself. Finally, the arguments of this work are considered to be consistent with the existing obligations of the UK, and other countries, under the ECHR and the Agreement on Trade Related Aspects of Intellectual Property Rights, and as such of potential application outside the UK.