Capability Approach to Patent Law and Policy – Poster Presentation

Carbone, Julia (2016). 'Capability Approach to Patent Law and Policy - Poster Presentation' Paper presented at the annual conference of the HDCA, Tokyo 2016.

Poster Presentation Abstract
Julia Carbone
The proposed poster will map out my SJD thesis at Duke University, which focused on developing a theoretical framework for patent law and policy within capability theory. While political philosophers have long recognized utilitarianism’s inability to answer key distributional questions, legal scholars, the courts and policy-makers continue to rely on the theory to address distributional problems in patent law. The narrow argument that patents provide the necessary incentive to innovate, which ultimately promotes social utility (often equated with economic growth), fails to account for the diversity of stakeholders engaged in innovation and cannot resolve difficult questions such as how the patent system ought to resolve tensions between important interests such as: providing  an incentive to innovate while ensuring that drugs are affordable and accessible; encouraging drug development specifically for diseases that affect the world’s poor; protecting the interests of Indigenous Peoples and their knowledge while allowing for public access to research that can serve all; and ensuring researchers in all countries with the ability to engage in research that they find interesting and significant while securing funding for this research. Meanwhile, continued industry lobbying to further expand patent protection – whether by enlarging the definition of ‘invention’ or broadening the rights granted – threatens the development of and access to needed goods and services in health field.
This insight led me to develop a needed philosophical framework to guide policy development in the field of patent policy within a capability approach to justice. Consistent with capability theory, the patent system can only be justified insofar as it promotes human flourishing, measured through a set of capabilities. The poster will set out how I grounded the patent system within a capability approach to justice, namely: deploying wide reflective equilibrium as a deliberative and iterative approach to theory building. Implementing wide reflective equilibrium involved triangulating three case studies covering significantly different subject matter (the development of AZT and treatment of HIV/AIDS, the patenting of genes and genetic diagnostic tests, and use of traditional knowledge as it relates to the life sciences in India, Brazil and the United States), background theories, and the principles that underlie the capability approach to justice. It will then set out the key capabilities on which the patent system consistently acts, identified through the anlaysis, and the conditions that any patent system ought to work to secure in order to promote human flourishing as well as the mechanisms to secure these conditions.
The result is not only a workable approach to the analysis of patent systems with a great degree of convergence on the essential elements that any patent system must possess, which can then be tailored to suit the needs of a given country.  Notably, to promote human flourishing over the long term, the patent system – and relevant institutions – must help ensure that knowledge is produced and shared in a way that places humans at the centre, fosters collaboration and trust, gives voice to all stakeholders equally, places priority on respect of sovereignty over harmonization, is transparent and accessible, and supports the public infrastructure necessary to support innovation and sharing.  
In setting out the way in which I developed the theory, the poster will put forward a concrete approach to implementing capability theory by proposing 1) macro, meta and micro levels of analyses of capabilities and 2) a constitutional style proportionality framework for resolving conflicts among capabilities. 

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