| Patent law is often recognized as technical norms,far from ethics and morals.But the misgivings and controversies about issues of ethics and morals arising from life forms, biological materials and humane cloning as patent subject suggest that there are profound ethical implications in patent law.This paper tries to develop a new subject on the ethical foundations of patent law,the purport of which is not limited to responding to the difficult moral problem arising from genetic engineering,but the emphasis of which is a discussion on the overall level of patent law about questions such as what values the justifiable law covers, and how to attain to the ethical justification of patent law.This proposition unfolds from such three dimensions as substantive ethics,formal ethics and procedural ethics,based on the verification of the extensive relevance between patent law and ethics.There are not research findings in Chinese and English documents similar to this paper surveying patent law systematically from the viewpoint of ethics.The intention of this paper on the field of patent law taking ethics philosophy,especially system ethics,as intellectual background and analytical tools is not only to reveal the ethical foundations how patent law become a good law so as to deepening our understanding and appreciation of patent law,but also to form a general theoretical model of legal ethics on the justification of patent law,the logic of which is more self-consistent and coherent,and which has larger explanatory power for the realistic problem up against patent law than the exiting approach such as incentive theory and natural right.This paper consists of seven chapters.The introduction part defines ethics and related notions in this text because there is ambiguity for the meaning of this kind of concepts.The introduction also provides necessary intellectual background indispensable for the discussion of postamble by making a description of the context of the evolution of ethics philosophy, especially of the confrontation between deontologism and utilitarianlism,and especially of the rise of applied ethics such as system ethics.The introduction indicates that the ethical analysis of law includes justifying the law and elucidating the concrete moral problems,and this paper focuses on the justification of patent law.The introduction summarizes the current situation of research on the ethical analysis of intellectual property law including patent law,and assays why this kind of research is in a weak state.The introduction suggests that the ethical analysis of patent law has theoretical and practical significance,such as providing new theory perspective for patent law research,providing the systematical idea of argumentation for the justifiable criterion of patent law,providing frame of reference for the exiting theory of the jurisprudence on patent law,and providing the diagnosis for the legitimacy crisis the patent laws are confronting now and the concrete moral problems.At last,the introduction explains the thread and structure of the paper.The relation between patent law and ethics is prerequisite for discussing ethical foundations of patent law.Chapter one reviews such relation respectively from the viewpoint of specific norms and the overall institution,answering the question if there is correlation between patent law and ethics.From the viewpoint of specific norms,this paper criticizes the trend of off-ethics in patent law through a survey of articles of public order and moral of patent law,and suggests that it is prerequisite and necessary requirement of patentability for patent application conforming to ethics,and argues that patent applications violating ethical principles are excluded from the patentable subject by fully exerting the function of moral appraisal of public order and moral article in patent examination.For the opinion that patent law is technical norms irrelevant to ethics,this paper points out that there are a great deal of ethical norms in patent law besides public order and moral article directly consisting of moral predicates.The allocation of rights and duties between ethical subjects provided by these articles incarnates abundant ethical implications.From the viewpoint of overall institution, this paper discloses the correlation between patent law and ethics in the link of legislation, judicature,law enforcement,and law-abiding.The principles of patent law bear the ethical ideas of legislator,offer legal technology through which ethics can get into the application of patent law,embody the inherent requirement that patent law empties into the ethical culture of civil law.The application of patent law saves a working space for ethical philosophy and moral ideas.The general article and indefinite concept of patent law shall resort to moral ideas of the society,the interpretation of patent law shall be drawn by the ethical ideas of the adjudicators,and plugging up of loophole of patent law and rechtsfortbildung are construction and deduction of legal ethical principles case by case.The effective enforcement of patent law also depends on the moral identification of the general public with patent law and the common ethical evaluation about the justification of patent law.The enforcement of patent law can't only rely on repressive law,and we should pay more attention to the link in patent law practice to improve the ethical environments for the execution of patent law and to foster the culture for the recognition of patent law.In a word,the conclusion of chapter one is that there is the close association between patent law and ethic philosophy and social moral ideas.Chapter two focuses on the centre subject as the ethical justification of patent law.Firstly this chapter clarifies the conception of the justification of law by the methods of pragmatics and semantics,and precipitates the theorem that the justification of law comes down to ethical justification.Then the realm of the justification of patent law is discussed.The justification of patent law is moral evaluation of the overall patent law system for a particular period and in particular region or of some specific provisions of patent law according to the criterion of universalizable principles system provided by ethics philosophy,by which the value justification has been accomplished in public sphere and moral recognition has been attained. The centre topic of this paper as the ethical justification of patent law which demonstrates the criterion of justifiable patent law based on ethical theories and moral principles is revealed by differentiating some words and phrases such as the justification of patent right and the justification of patent law,justification and justifying.The research on the ethical justification of patent law arises from the concern for the legitimacy crisis confronting patent law currently which manifests itself by bringing about public health crisis,impeding follow-up research, stirring opportunistic behaviors,incurring moral dilemma problems,and leading to unjust distribution structure of interests.The exiting theory on the justification of patent law mainly consists of natural rights theory and incentive theory,which is not completeness in theory because they are not fully self-consistent in logic,and which is often out at elbows confronting the practical problems brought about by biotechnologies and lacks explanatory power.In addition,they only concern about the substantial rights and duties of patent law,not covering the formal and procedural dimensions of patent law.This paper unfolds the complete conditions of the ethical legitimization of patent law from the viewpoint of substantial,formal and procedural aspects,and suggests that the legitimacy of patent law consisting of substantial ethicality,formal ethicality and procedural ethicality is the integration of substantial legitimacy,formal legitimacy and procedural legitimacy.Chapter three,chapter four and chapter five follow the general discussion of chapter two, discuss how to realize the ethical legitimacy of patent law respectively on the dimension of substance,form and procedure.The topic of chapter three is the substantial ethicality.The substantial ethics of patent law contemplates if the distribution of rights and duties given by patent law coincides with the ideas of fairness and justice,in other words how patent law norms deal with such substantial questions as the attribution of patent rights,the requirements for patent,and the restrictions on patent.The exiting patent jurisprudence insofar as incentive theory,labor theory and contract theory is based on the deontologism and utilitarianlism.This chapter criticizes the utilitarian ideas governing the patent law practice,points out that utilitarianlism is partially incomplete in theory and leads to actual detriments to patent law practice,suggests that the philosophy of patent law returns from utilitarianlism to deontologism,insists that right is prior to good and proposed reconstructing the ethical foundations of patent law according to the justice principles.This chapter brings up a justice theory of patent law aiming to realize the substantial legitimacy in accordance with "a theory of justice" of Rawls.This theory consists of three justice principles and two priority rules.Three justice principles include the principle of no harm,distributive justice and efficiency principle.The meaning of principle of no harm is that the practical effects of patent law enforcement should not harm basic human rights and not derogate from life dignity of overall mankind and personality dignity of each individual. The distributive justice includes the doctrine of fair equality of opportunities and the doctrine of "benefit the least advantaged".The doctrine of fair equality of opportunities in patent law ensures everyone the freedom of science and technology research to avoid an abuse of patent law by opportunistic behaviors to be a legal instrument of impeding follow-up research and assures the invention opportunities equally open to everyone.The doctrine of "benefit the least advantaged" moves the viewpoint of patent law from patentee or the public down to such worst-off class as the epidemic patients in the least-developed countries,the retainers of genetic resources and small and medium enterprises in a disadvantaged competitive position, which demands that whatever changes of patent law should make the worst-off class better off, insofar as whatever unequally distribution should rectify the exiting unequal arrangements of interesting and competitive situations caused by patent law.The doctrine of efficiency demands that the social benefits are more than the social costs of patent law and maximize social welfare.The two priority rules of the justice theory of patent law establish the priority ranking between diverse justice doctrines,which has guiding significance over many hotspots confronting patent law.The first priority rule is the priority of the principle of no harm that the principle of no harm takes priority over distributive justice and the principle of efficiency, which provides a foremost prerequisite for the legislation,judicature and enforcement of patent law not harming basic human rights and human dignity.The second priority rule is priority of distributive justice over the doctrine of efficiency that the legislation and judicature of patent law should take precedence for fulfilling the requirement of ensuring research freedom and benefiting the least-advantaged over exploiting the incentive function and maximizing the efficiency.Chapter four discusses the formal ethicality of patent law which is the moral requirement for the form of patent law and the formal characteristic of patent law as a kind of substantial rules.The formal legitimacy of patent law consists in five requirements as logic coherence, clarity,strictness,systematization and stability,the core of which is faithful to the law so-called as "legality".It stresses the dimension of normativity and positivity of law,and means that anyone including legislator shall be under the normative restriction of law.Such restriction is not the corresponding correlation of individual rules,but the restrictive power of the overall patent law system."Faithful to the law" manifests such a picture of aspiration morality of patent law for the legislator that the legislation should conform to the formal requirements of generality,logic coherence and clarity,and that the legislation tries its best to maintain the stability of law in response to the requirements of the technical changes nowadays.It should not destroy the basic logic structure of the patent law in congruence with the exiting law system.The adjudicator and administrator of patent law apply the general stipulations in the specific cases sticking to the formal logics of patent law.It shall be done in the framework of positive law even if the subjective moral judgment is introduced.The ethical implications of formal elements of patent law can be attributed to the so-called "internal morality" by Lon L.Fuller,a variety of principles of legitimacy constitute a special role morality attached to the occupations of legislators and executors,and the security of law is main ethical values of the formal dimensions of patent law.This chapter exemplifying the debates about the invention/discovery and the criterion of utility on the patentability of gene sequences,unfolds the meaning of formal ethicality of patent law,and suggests that the positivity and normality is the basic dimension of patent law and formal is the prerequisite of legitimization of patent law.The significance of formal ethics is not only the order value of the security of law contained by itself,but also the instrumental value as a means to the substantial ethicality.Especially under the pressure of new technique to enlarge the patentable subjects and protection intensity,the formal ethics of patent law adversely requires that the legislation,amendment and application of law conform to the basic principle of the exiting patent law system,maintain the logic coherence,and are not contrary to the formal rationality of patent law for some utilitarian purposes.Legal procedure,not neutral ethical,should be appraised morally.Chapter five discusses the procedural ethicality of patent law as how to legitimatize the patent legislative procedure, judicial procedure and executive law enforcement procedure.The legitimacy of judicial procedure and executive enforcement procedure of patent law concentrates on the conception of procedure justice,consisting of fairness principle,efficiency principle and participation principle.The congruence with ethics of legislative process of patent law is the essential condition of legitimatization of patent law.This chapter takes the discourse ethics of Habermas as analytical instrument aiming to be well aware of the legislative process of patent law.It is a theoretical innovation to introduce the philosophy method of Habermas to the patent law as the basis for reflecting on the justification of legislative process.Discourse ethics hints that the legislative process converts its aim from legality to legitimacy,from instrumental action to communicative action,from instrumental rationality to communicative rationality,from utilitarianism to discourse ethics.But the realization of discourse ethics of patent law is in face of such practical obstacles as the large enterprises' dominance over the legislation of patent law,vacancies of most people,and the unequality of participation.The approach to the discourse ethics of the legislative procedure of patent law lies in forming the mechanism of adequate and broad democratic discourse,taking shape of public spheres which can effectively check and balance the government system and economic system,and bringing the non-governmental organizations into play.Chapter 6 applies the theory of ethical justification of patent law to biotechnological questions,examines its power of interpretation through analyzing the specific examples,and deploys from the level of legal norms.On the debates about the biotechnological subjects,it can be seen more clearly for the drawbacks of utilitarianism and the advantages of the justice theory of patent law that the innerlogic of utilitarianism is incompatible with human rights and human dignity,and that the distributive justice can not be incorporated in the framework of utilitarianism.This chapter scrutinizes such patent problems as the patentability of human genetic sequences and human cloning technique from the viewpoint of the principle of no harm and distributive justice.This paper suggests that the patents issued for human cloning technique and human DNA sequences infringe the human dignity,and that the human DNA sequence patent impairs the realization of basic human rights such as health rights.Patent law may exclude the patentability of human cloning technique and human DNA sequences in accordance with the requirements of no harm principle.While these patent subjects in conflict with human dignity and basic human rights,the law recognizing their patentability can not be justified based on the priority of the principle of no harm however it inspires inventions and stirs the progress of technique.Considering distributive justice,the genetic resources problem which the international community pays much attention to is the manifestations of the interesting conflicts between the providers of biological materials and the patentees enlarged to the level between different countries.The patent laws provide mechanism to protect rights for patentees,and its scope of protection is continually expanded while patent rights are recognized as civil rights.But the exiting laws may not provide effective mechanism of protection for the owners or the retainers of genetic resources.Such inequality of the distribution of legal rights leads to the unfair situation in the distribution of benefits between the owners or retainers of biologic resources and the patentees.This is the crux of the matter. The reason of this problem is the expansion of patent rights to the biological materials such as DNA sequences that exits in nature,which makes the biological materials carrying genetic information the objects of exclusive rights,and which changes the original state that genetic resources are free.While the policy as the privatization of biological materials through patent law has been enforced for two decades,its obstacles to the freedom of science and research have been manifested by and by,and it is contrary to the principle of fair justice of opportunity because it deprives or restrains other people of the opportunity to obtain patent rights by entering related research sphere.Distributive justice is the core and the primary aim to solute biological technique patent problems.The genetic resource problem involves the interest relation between the providers of genetic resources such as indigenous tribes and biotechnical enterprises trying for patent protection from the individual viewpoint,and involves the interest conflict between the industrialized countries owning developed biotechnology and the developing countries owning rich genetic resources from the viewpoint of countries.The primary aim of patent laws in the scissors of benefit conflicts is to construct legal system congruent with "fair justice",not to stimulate the development of biotechnology. This is the application of the second priority rule as the priority of distributive justice over efficiency principle.For the distributive justice of the problem of biotechnology patent,it is opportunistic fair justice as patent law should not impair the freedom of science and research that should be fulfilled firstly.Then the arrangement of system should trend toward "benefit the least disadvantaged".The retainers or holders of genetic resources and the originers of biotechnical materials situate in the least disadvantaged position in the structure stipulated by patent law and other laws.Whatever patent law changes in such domain should be beneficial to improve their welfare and perfect their situation.The kernel of the realization of the principle of "benefit the leas advantaged" is to try our best to implement the principle of informed consent and sharing the benefits. |
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