Van Overwalle, Geertrui --- "Human rights' limitations in patent law" [2010] ELECD 339; in Grosheide, Willem (ed), "Intellectual Property and Human Rights" (Edward Elgar Publishing, 2010)

Book Title: Intellectual Property and Human Rights

Editor(s): Grosheide, Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444478

Section: Chapter 12

Section Title: Human rights' limitations in patent law

Author(s): Van Overwalle, Geertrui

Number of pages: 36

Extract:

12. Human rights' limitations in
patent law
Geertrui Van Overwalle*

INTRODUCTION
The relationship between human rights and intellectual property (IP) rights has
been undertheorized for a long period. IP rights have remained a `normative
backwater' in the burgeoning post-World War II human rights movement.1
Only over the last decade, human rights discourse has gained wider attention
and commentators have started to explore the relationship between IP and
human rights in more detail.2 Two major approaches can be witnessed. A first
school of thought takes the view that human rights and IP are in fundamental
conflict. Strong IP protection is undermining, and therefore incompatible with,
a broad spectrum of human rights obligations, especially in the area of
economic, social and cultural rights. This approach can be witnessed in
Resolution 2000/7, which stipulates that `Actual or potential conflicts exist
between the implementation of the TRIPs Agreement3 and the realization of


* Professor of Intellectual Property Law at the University of Leuven, the
University of Brussels and the University of Liège (Belgium); and professor of
Patent Law and New Technologies at the University of Tilburg (The Netherlands).
The present research was supported by the the Vancraesbeeck Fund. Special thanks
go to Paul Lemmens for his valuable comments on an earlier draft of this chapter.
1 Helfer, L.R. (2006), `Toward a Human Rights Framework for Intellectual
Property', Vanderbilt University Law School Public Law and Legal Theory.
Working Paper 06-03 (available at http://ssrn.com/abstract=891303, last visited
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