Center for Advanced Study & Research on Intellectual Property

 

CASRIP Newsletter - Spring 2007, Volume 14, Issue 2

Islamic Law and Modern Patent Law

By Jonathan A Claypool1

I. INTRODUCTION

The concepts of intellectual property law and specifically patent law are within the “zone of twilight” and represent some of the “contemporary imponderables” of traditional Islamic law.2 That is to say Shari’a law is silent on the topic, however there exists some evidence that the “moral concept” of intellectual property protection in primitive forms existed in Arabic Middle Eastern Culture before Islam.3 Commentators have established support in ancient Islamic traditions for trademarks and copyrights, but not for patent law.4 Nevertheless patent statutes exist and are being modified in Muslim majority or Islamic Countries which raises question of the acceptability and interaction of patent law with an emerging re-emphasis on traditional Islamic law.

Intellectual property can be separated into four main categories: patents, trademarks, copyright, and trade secrets. Neither of the two main sources of Islamic Shari’a law the Quran or the tradition of the prophet, the Sunna, directly addresses the legal doctrines and basic tenets embodied in modern intellectual property law. However the strong focus on property law and the ways it can be acquired by “purchase, bequest, inheritance, mental or physical personal effort, blood-money (diya)…” can be extended to cover all forms of intellectual property, including patents.5 Trade secrets are also fixed in the law of “tort and contracts” with some connection to ancient roots in Islamic tradition, but fall outside of the scope of this analysis. Also copyright law will not be examined but exists and is rooted in the sanctity of contract under Islamic law.

One tenet of patent law is that the invention must be reduced to practice either through the building of a prototype, or through drawings and writings coupled to filing of a patent application (constructive reduction to practice) sufficient to teach one skilled in the art to practice and use that invention, before a patent can be granted.6 The reduction to practice doctrine anchors “inventions and patents” as intellectual property to tangible property and only then is a social exchange allowed-the limited exclusive right to exclude granted for the benefit that the disclosure ultimately gives to the public. Similarly, property law has a strong basis in Shari’a law and connects it to intellectual property law.

The focus of this paper will be to examine the patent laws of Egypt and Saudi Arabia and how these governments are meshing their patent statutes and legal doctrines with emerging international issues of globalization as well as for consistency with the resurgence of shari’a law and re-embrace with Islamic principles.

II. ISLAMIC CONCEPTS AND PRINCIPLES APPLICABLE TO PATENT LAW

Since the Quran and Sunna (Hadith or tradition of the prophet Muhammad) do not speak directly to patent law it is generally believed that it falls into a category of permitted actions. Most all countries with Muslim majorities that can be described as Islamic have patent laws and provide for protection for inventions.7

Islamic Shari’a law views most conduct or acts as on of five general types: mandatory; recommended, permitted, recommended against, and banned. Sometimes though not officially banned by shari’a in practice; this is in fact the case. For example the drinking of alcohol is not banned by the Quran while eating some foods is, but the possession and drinking of alcohol is effectively forbidden in some Islamic countries.8 An essential concern for Shari’a is that patent law not fall afoul of the primary (i.e. Quran and Sunna) or secondary sources of law such as consensus (ijima)), or strict analogical reasoning (qiyas).9 It is reasoned that patent law need only be consistent with these sources since it is not extending traditional legal rules or moving them by analogy (qiyas) to new rules and so is somewhat free outside these contexts, as long as the patent system is generally compatible with the higher sources of law. The basic conclusion is that intellectual property law, and specifically patent law, is within the purview of the individual governments and is only subject to general notions of consistency with Islamic precepts and law.10 In this way there is some of the flexibility that has been invoked for modern commercial and contract law. However, in the case of fundamental property and contract principles there are significant roots in Shari’a law.11

Patent law in most Islamic countries has been borrowed form European law through the introduction of primarily the French civil code. In many cases this has been recently adapted to make it consistent with modern international demands for patent protection of pharmaceuticals and medical devices.12 These areas are of concern since modern biological research is raising controversial issues of patenting genes sequences, hybrid animals and plants (transgenic), and even higher organisms. In addition, patents are increasingly obtained on compounds via bioprospecting in countries without proper compensation. All of these issues raise moral, ethical, and legal questions that may tread into territory traditionally governed by Shari’a law.

U.S. Patent law is based on granting a property right to exclude others from making, using, selling, or offering to sell, or importing, for a limited time as a reward and incentive to disclose an invention for the public benefit.13 Otherwise, there would be greater incentives to keep knowledge and advances as secrets, inhibiting progress and overall benefits to society. A patent is a fundamental property right given in exchange for the disclosure of how to make and use the invention by one skilled in the art.14 Practically the entrepreneurial spirit and desire to commercialize inventions drive patent protection as much or more than any social contract or exchange of protection for disclosure. The invention must be novel, non-obvious, and useful and be generated by a creative or inventive step in order to be afforded legal protection.15

Islamic law and the Quran recognize the concept and separability of underlying components of private property. These rights are enforceable, being held sacred by religion and recognized by the state, but in a form of trusteeship in the name of Allah. Thus, a private property owners rights are superior to all but god-Allah.16 Further the concept of acquiring such rights by creative act or appropriation by making something that is not useful into something productive is recognized. These same principles underlay patent protection and can be argued for protection under Islamic law. They are certainly not contrary to strong private property protection (patents) for the creation of inventions under Shari’a law. In fact patents are often licensed either exclusively or non-exclusively in lieu of sale or assignment, for example in Egypt among sophisticated parties. Under Shari’a law the divisibility of title into full ownership and possessory interests has been recognized and has a long tradition.17 This issue has not been a problem regarding patent licenses in Islamic countries that view such separation of rights as standard and consistent with Islamic practices.18

An Islamic jurist has argued that ideas are divisible from physical property, giving the example that a thief stealing a book is not subject to the punishment of amputation for stealing the book as paper, but is given a lesser penalty since he is only taking the ideas or the words within. In contrast theft of an account book would deserve a severe punishment due to theft of the value of the information (i.e. intangible intellectual property within). There does not seem to be any additional authority contrary to this limited example, and the assumption that intellectual property is valid in Islamic law remains intact. 19 Thus the basic underlying principle of patent protection, intangible intellectual property, is nominally recognized within Islamic law, while there is also strong recognition of property rights in general.

Concepts of contract law are embedded in Shari’a law with several Quranic verses addressing the sacred nature of contract. These focus on ones duty to fulfill agreements, including treaty agreements by governments.20 Such recognition is important today since there is a strong push for patent and intellectual property harmonization in the world. The fundamental respect for treaty rights and contract principles make Islamic countries’ governments mindful of agreements they sign, primarily since it is part of Shari’a law tenets. Respect for the patent laws of other nations in the form of treaty obligations is thus honored.21 This also facilitates regard for patents owned by foreign citizens within an Islamic country and affords some governmental support to protect such rights. Patent licenses often involve technology transfers and many such transactions involve governments to a degree, especially for pharmaceuticals, thus this is a topical issue.

Two additional concepts from Islamic law apply to modern patent law principles. One is indefiniteness (Gharar) and the other is the public good (Maslaha). The idea that a contract must be anchored in perfect knowledge of what was being exchanged grew from Sunna against uncertainty and unconscionable practices. This was first directed to gambling and grew from a general religious idea into a practical rule applicable to commercial law. Modern Gharar doctrine embodies that there must be knowledge of the value; also knowledge of the characteristics of the subject matter; and effective control by the parties over the agreed subject matter.22 Trade secret and copyright transactions are sometimes complicated by the principles of Gharar since information is sometimes held back until contracts are signed, which presents problems of indefiniteness. Patent licensing could potentially run into problems of Gharar since it can be difficult to value the technology in patents and also to know the true claim scope (limits and bounds of the invention) absent claim construction via litigation, thus there is potentially indefiniteness present. However, these likely problems may be overcome by practical considerations given the flexibility afforded Islamic commercial law and the desire of participants to state they know the relevant variables.23

The symbolic closing of the gates of “Ijtihad” that occurred sometime around the 15th century is stated to have ended independent reasoning of Islamic law, though this is debatable even today. Thus, Islamic law is proposed to be incompatible with modern developments such as intellectual property and patent law.24 Others point to modern Middle Eastern culture that they say rejects Western commercialism and past dominance and so consistently refuses to protect intellectual property and patent rights.25 Both of these arguments ignore the potential within Islamic culture to adapt. The first patent statute is reported to be from legislation in 1474, by the Venetian Republic, which is well within the ambit of dominant Islamic culture of the time.26 Accordingly, the notion that invention and patents are new is historically skewed.

Many Western people have rejected patents and U.S. history is also dotted with lax enforcement and general denial of rights. A notable example is Eli Whitney who patented the cotton-gin. In protracted attempts to enforce the patent he was denied by U.S. courts from 1794 until 1807, despite having an ostensibly valid patent. Eli Whitney filed at least sixty patent infringement suits in Georgia alone, but was unsuccessful in all of these law suits. During this time people freely copied his invention.27 Another famous quote is from the esteemed Mr. Justice Jackson of the U.S. Supreme court, who stated in frustration, dissenting: “the only patent that is valid is the one this court has not been able to get its hands on.”28 Thus mere lack of enforcement does not prohibit the embrace of innovation and patents.

Public policy (Maslaha) is enmeshed as a unit in Islamic life and governs all matters (i.e. spiritual, ethical, and moral) including all commercial and secular matters.29 A Quranic principle is that a major goal of the public is to advance good and hinder evil and also to care for the unfortunate.30 Some schools of Islamic law such as the Maliki even allow ignoring or re-interpreting Quranic verses if they run too counter to the public good. The Hanafi legal school allows for versus based in custom to evolve as the custom among the people evolves. Thus, even though the Quran is primary law from Allah, the concept of public policy allows for some adaptation if sufficiently in the public’s interest. Some commentators state that the Islamic religion is so thoroughly part of Middle Eastern identity and society that secular Westerners have difficulty understanding the inherently personal, or as a whole, system of morality.31

Similar concepts of morality limit application of patent law in cases of national security and morality in the U.S (also for Japan and European countries).32 There have been examples of imputing morality or the public good into the U.S. patent law. For example patentability of certain special nuclear material or atomic energy is prohibited.33 Also medical practitioners are exempt form infringement for practicing medical activity.34 These are grounded in policy as being for the public good.

III. EGYPT AND SAUDI ARABIA HAVE ENACTED NEW PATENT STATUTES

Egypt and Saudi Arabia have each addressed unique features of modern patent law via recent amendments in their patent statutes and also accommodate interaction with Shari’a law. These are examined with special focus on issues unique to each country with some relevant comparisons to United States, European, or Japanese patent law with some emphasis on pharmaceutical and biological examples where the modern demands impact their law. Despite being quite different as Islamic Countries in history, religious tolerance or strictness, population, as well as wealth and development, each accommodates patent law in compliance with their Shari’a law.

IV. EGYPT

A. Egypt has Amended their Constitution to Refer to Shari’a Law as the Source of all Law

Egypt has amended its constitution to refer to Shari’a as the source of all law (from previously “a source of law”).35 Historically, Egypt has shown deference to foreign powers most notably before and during the colonial era. The treaty Montreux and the mixed system of the Capitulations are noteworthy, for they paved the entrance of European power into the Middle East. These represent negotiations and a settlement between Ottoman Sultans and Western European countries that was non-reciprocal. It showed a willing, or perhaps necessary deference, due to power structures of the time and to aggressive European interests, by granting a separate legal system for disputes as well as considerable immunities.36 Since Europeans were not Islamic this was justified that they be judged outside of Shari’a law.

Egypt has always been in the vanguard of Islamic reform movements. It adopted Western law and later codified the Hanafi law of family and inheritance, encountering some resistance from traditionalists. The Egyptian government has given the impression that there is no interference with the essential content of codified law and the law of the Shari’a.37 This course continues today. The path of the nation and application of Shari’a principles is likely an ongoing balancing test with pushes for modern secular development together with layering of Islamic principles. Some of the reverence to both secular and Shari’a traditions can still be seen via recognition of foreign patents and intellectual property treaty obligations. Egypt is a signatory of many intellectual property and trade oriented treaties and provides expedited international patent filing via the Patent Cooperation Treaty and recognition via the Paris accords.38 This stance can be argued to both coexist with shari’a law and to be a plan to move the country into economic prosperity and modernity.

B. Egypt’s Patent Statute Has Been Amended to Promote Development

The Egyptian patent law is well developed, gives respect to treaty obligations, foreign patents, and ownership of Egyptian patents. The Egyptian patent statute was modified in 2002 increasing significantly the rights of inventors, along with other changes that benefit holders of other types of intellectual property protection (e.g. artists, performers, software designers).39 This law sent a message to the world that Egypt was serious regarding patent protection and also stymied attempts by United States interests to put Egypt on a watch list for trade sanctions.40 Egypt had developed a reputation for being weak on patent and other intellectual property protection. The statute mandates that all inventions not be “counter to public morality or disorder” but there are no identifiable cases addressing this issue reported in the sources examined.

Generally, Egyptian patent law now meets international standards with a 20 year term from the date of filing (e.g. novelty: cannot be know or used publicly; non-obviousness/ inventive step principles, written description requirements) and switched from a positive right, to a right to exclude, more in line with the United States and Europe.41 However, the Egyptian patent office is in need of automation and like many patent offices requires additional funding and personnel to cope with increasing demands.42 Previously Egyptian law granted an affirmative right that was more similar to Japan’s patent statute, but now is in the minority world wide.43 There is no similar right in United States or European law, except for some special market exclusivity provisions and patent term extensions for new drugs.44 The addition of an “exhaustion” addendum to the right to exclude in Article 10, complicates patentee’s rights, since it allows third parties to import patented products if they have been marked elsewhere thereby creating incentives for gray marketers to import and compete with the patent holder. Ultimately this leads to pricing issues, imports from countries without strong patent protection, and compulsory licensing issues (developed in more depth below).45

C. Egypt’s Amended Patent Statute Allows Patenting of Pharmaceuticals

The subject matter allowed by the patent statute is broad and has expressly added products, which strengthens protection for pharmaceutical products enormously. Previously, only the method or process was patentable, which is much easier to invent around. The current statute reads:

Article 1: (Subject Matter suitable for Patent)
“Patents of invention shall be granted pursuant to the provisions of the law herein for each invention, which is industrially applicable, novel and involves an inventive step, either concerning new industrial products, innovated industrial methods, or new application of known industrial methods.”
Article 2 (Negative Definitions on patentable subject matter)
Patent of invention shall not be granted for the following:
1- Inventions, whose exploitation, may result in prejudice to national security, breach of public order or morality or seriously damage the environment or the life or health of human, animal or plant.
2- Scientific theories and discoveries, mathematical methods, programs and layouts.
3- Diagnosis, therapeutic and surgical methods for man or animal.
4- Plants and animals, whatever the level of rareness or strangeness thereof; and biological processes for the production of plants or animals; with the exception of micro-organisms and the non - biological and microbiological processes for the production of plant or animal.
5- Living organisms, tissues, cells, natural biological materials.

There are also restrictions on medical therapies, plants, animals, cells and tissues, with the notable exception of microorganisms and associated processes. This is in contrast to a broader view of patentable subject matter in the United States “where anything under the sun made by man” is patentable, with the exception of humans.46 Thus, in the United States numerous higher organisms have been patented including the famous “Harvard Mouse” (with a propensity to develop cancer making it a valuable research tool) to polyploidy pacific oysters (sterile and edible year around).47 Most other countries including European nations fall in between, but usually the line is drawn somewhere at higher organisms near humans. The United States position has also been subject to challenge on morality grounds, but the U.S. patent office has refused patents on human animal chimeras avoiding clear attempts to provoke outrage.48 The European Union has shifted course from a prohibition and now allows patents on transgenic organisms (i.e. reinterpreting Article 53b of the European Patent Convention).49

D. Ownership and Licensing of Patent Rights in Egypt

Patents can be owned by many including most foreigners in Egypt.50 Egypt is a first to file country and patent rights are generally granted to the first person to file a patent application. Most nations have adopted this format, with the United States even contemplating switching from a first to invent system to a first true inventor to file system.51 One caveat unique to Egypt is that if someone was independently practicing the invention before others files for a patent Islamic Shari’a principles allow him to continue but he has no right to transfer these rights. The Egyptian patent statute does not address fraudulently obtained inventions, but one could surmise actions such as stealing or falsely claiming an invention would lead under Shari’a law to a result favoring the true owner.52

The ownership of a patent in Egypt often depends on ones employment status as well as the number of inventors. If there are two or more inventors, they will own equal shares.53 An invention made by an employee in the scope of their work or during working time is owned by the employer. In the United States there is usually a contractual obligation to assign the patent to ones employer, but only the inventor can apply for the patent, and the chain of title is defective absent an assignment.54 However, in Egypt usually an inventor gets recognition as the inventor and suitable compensation awards. If the employee makes an invention on his own time the employer still has a right to purchase the rights at an equitable amount for three months, or for one year after the person leaves employment. This section is similar to the previous Egyptian patent statute.55

There are some conditions where the owner of an Egyptian patent may be forced to license a patent (i.e. grant a compulsory license).56 The Egyptian patent statute Article 23 takes a broad interpretation of the Trade Related Aspects of Intellectual Property, (TRIPS) Article 31 (See below for TRIPS discussion related to pharmaceuticals).57 For example, the Egyptian government can mandate compulsory licensing for public utility and national defense as well as when the patent holder is unable to work the invention on a scale sufficient to satisfy the national needs.58 Presumably this fits with the Islamic principle of being for the public interest and the government compelling using inventions for the public good fits with this notion.59 Compulsory licensing also is allowed when the patent is not “worked” for three years, meaning no commercial form or process is produced.

Other situations that can force compulsory licensing are when the patented invention is interrupted for some reason, or when the patent holder is demanding excessive licensing fees. Additionally, compulsory licensing may be invoked when one invention crosses into technology controlled by another and the first must use this technology to practice their invention. In the United States in contrast only the federal government can mandate compulsory licensing when federal money has been used to develop the invention, but the United States Government rarely exercises these “march in rights.”60 Sometimes the United States federal government mandates compulsory licensing in cases of mergers and acquisitions for antitrust concerns, where compulsory licensing is conditioned for the merger’s approval.61

E. Egypt’s International Patent Obligations

Egypt is a signatory of the Trade Related Aspects of Intellectual Property (“TRIPS”) that lies at the center of a debate between developing and Western (developed) countries. Before TRIPS, Egypt could legally make generic copies of internationally patented drugs and thus provide significantly lower-cost medicines to their citizenry. For example, near the time of the passage of the Egyptian patent statute (Law 82, 2002) the Ministry of Health approved 12 local Egyptian pharmaceutical companies to manufacture Viagra®, just two months after Pfizer had granted exclusive rights to their subsidiary Egypt-Pfizer.62 Perhaps the demand for Viagra outpaced the subsidiaries ability to produce it, or was in the overriding national public interest and thus necessary under both political expediency and Shari’a law.

Adherence to protections in the TRIPS treaty removes this avenue, although this is not yet a completely successful process. One reason is that people are accustomed to and expect the availability of low-cost generic drugs and favor them, even if they are made illegally. Eliminating such behavior would require diligent enforcement and policing. It is worth noting that similar struggles between increased generic drug availability and patent protection for drugs by the pharmaceutical industry are also routinely fiercely contested in the United States, Japan, and European countries.63 In most cases however, the pharmaceutical industry has been able to use trade, market, and legal protection coupled with the desire to build and protect one’s “native” pharmaceutical industry to outpace regulation and interlopers.64

Much of the current debate concerning pharmaceutical drugs centers on strong integrated intellectual property protection with other legal regimes in member countries and whether strong patents facilitates development or quashes it in developing nations. One area where Egypt is involved is in the pharmaceutical sphere regarding patent protection and trade. Only a few countries have significant non-generic pharmaceutical industries and these have a role in forming national and international priorities regarding pharmaceutical patent rights and enforcement.65 Egypt has a fledgling, but robust pharmaceutical industry and is seeking to expand this industry beyond generic “knock-off” manufacturing. Growth of the native pharmaceutical industry was a primary factor in passing the 2002 Egyptian patent statute, both from desire within Egypt and in response to international pressures.66

Advocates of strong pharmaceutical patent rights emphasize global benefits, such as increased innovation and knowledge via disclosure to local research and development, and increased technology transfer opportunities, not just for large pharmaceutical companies, but for indigenous partner companies as well. Advocates also note lax protection in certain developing countries leads to a de-emphasis on diseases endemic to those locales.67 Counter arguments focus on what “really happens” notably claims that there are negligible positives for local research and development and mostly increased drug prices from patented compounds.68 Issues of technology transfer are argued to be distant and often unrealized and also that market and competitive abuses are common.69

Political factors and the desire to gain foreign investment in the Egyptian pharmaceutical industry also pushed the passage of the 2002 Egyptian patent statute. The increases in patent applications from 1995 to 2000 was due in part to a better and revived economic picture coupled with potential foreign pharmaceutical investment and competition from Jordan (who also had passed stronger patent laws), pushed the legislation through. The law continues to be controversial in Egypt and also has faced significant resistance from generic drug manufacturers.70

The goal of the Egyptian government is to increase privatization efforts and to build a globally competitive pharmaceutical industry based upon the existing industry which primarily manufacturers generic drugs from imported active ingredients with little original research and development (less than two percent of revenues goes to R&D).71 There are also other factors that are necessary to give effect to the stronger patent law, such as the reduction of regulatory hurdles, educational reform to increase trained scientists, and improved industrial practices. However, passage of several revised commercial laws has given promise to accomplishing the goal of industrial growth.72 The new commercial laws had the cumulative effect of providing incentives and removing barriers to foreign investment in Egypt. The incentives led to direct investment from Siemens, a pharmaceutical manufacturer, to build a pharmaceutical plant in Egypt in 2003, providing jobs, technology transfer opportunities, and much needed advanced training of personnel. However, at the same time Pfizer, the world’s largest pharmaceutical manufacturer, declined to build a new pharmaceutical and health care manufacturing plant in Egypt based on an incomplete implementation and enforcement of the new Egyptian patent statute.73 The progress Egypt makes in fostering a robust environment favorable to economic growth, foreign investment, and general governmental reform will determine if the amended patent statute is ultimately successful.

Egyptian patent law developments show that the nation is moving toward modernity, but in one arena the process is facing many of the inherent conflicts faced by Western countries, namely the cost and availability of patented pharmaceutical drugs. Passage of the strengthened patent law is a step that honors treaty commitments in TRIPS and the WTO, which is consistent with Shari’a precepts, but the other theme of the public good is more problematic. Many advance the hypothesis that patent protection is essential to innovation in the form of new chemical entities, or drugs. However, this comes with higher prices evidenced by prices in the United States where costs exceed most nations, and definitely those where some cost controls are in place such as Canada.74 Whether strong patent protection is in the interest of the public good is debatable and is possibly in conflict with Islamic law principles. The advanced economic development and therapies perhaps balances against the necessarily higher costs and thus both arguably fall in step with Shari’a law.

V. SAUDI ARABIA

A. Saudi Arabia is Open to Patent Law

Apostasy, conversion to another religion, is punishable by death, in the strict Wahhabist kingdom of Saudi Arabia. Luckily, patent law does not generate such passion in Saudi Arabia, or anywhere for that matter, primarily since it lies in the silent region of permissible acts subject to governmental regulation outside but still subject to the Saudi Arabian Shari’a law. Pragmatism mandates that although religion is sacred, business and commerce moves a country forward, and sometimes such topics are best separated out from such core areas, especially when the Quran and Sunna are silent. The practical view for patent law, like commercial law, will fit with the realistic approach to the regulation of inventions. More radical Islamists may call for a blanket rejection of innovation and advances of the modern world based upon a perceived deviation from Shari’a law, but this view is unlikely in the strictly conservative Saudi Arabia. However, some commentators believe clarification of a new Shari’a code is in order for modern economics.75

B. Saudi Arabia Amended Patent Statute to Comply With International Norms

Similar to Egypt, Saudi Arabia has recently reformed its patent statute to comply with international treaties. One stated goal of the Saudi Arabia’s new law is for “encouraging the inventiveness of the Saudi Arabian nationals” together with implementation of the patent law. Primary is the change granting protection to pharmaceuticals, where previously this was not possible. The addition of protection for pharmaceuticals was a response to United States and European pressure for strong protection based on Saudi WTO treaty obligations. Saudi Arabian compliance in amending their patent statute shows some of the flexibility afforded this area of non-shari’a law.76

C. Saudi Arabia is Developing a Modern Patent Regime

The Saudi Arabian patent system is in its infancy, but is making leaps forward into the modern era. Changes to the Saudi patent law were modeled on U.S. law, but are not duplicates of it, and include, an extension of the term of protection from 15 years to 20 years, as well as the extension of protection to pharmaceutical products, including product and process protection.77

Absolute universal novelty is stipulated by the new Saudi Arabian patent law. This differs from the U.S. law, which allows for a one-year grace period, but mirrors most other nations.78 Under the Saudi Arabian statute, an invention is novel only if it is not anticipated by the prior art (i.e. the invention is not known). Absolute novelty covers anything disclosed to the public anywhere and at any time, by means of a written or oral disclosure, by use, or in any other way, before the relevant filing date or priority date. Europe, Asia, and the United States have some exceptions to absolute novelty in grace periods from six-months to one-year, with doctrines of experimental use that give some limited leeway.79

D. The First Saudi Arabian Patent

The first Saudi patent applications were filed in 1989 with the “General Directorate of Patents.” The first patent issued on June 18, 1990 at the King Abudulaziz City for Science and Technology (“KACST”).80 Since then fewer than 200 patents have issued on various inventions ranging from chemical compounds, biotechnology inventions, to mechanical inventions, among others.81 Despite the nascent scope, Saudi Arabian patent law is moving toward international acceptance and standards. However, the “General Directorate of Patents” has encountered difficulty in undertaking the examination of applications, leading to significant delays. This is partially due to the gearing up process and is partially due to the requirement that the country to complete substantive examinations within the directorate. Despite these reforms, in the eyes of the United States and the international community, Saudi Arabian enforcement efforts have been weak for most intellectual property. In fact, Saudi Arabia remains on a special watch list, having moved from the WTO program's priority watch list in 1996 in recognition of progress made in intellectual property protection.82

E. Saudi Arabian Patents Must Comport with Shari’a Law

Saudi Arabia has specifically mandated that patents granted must meet with the requirements of Shari’a law. This requirement is outlined in Article four of the patent statute. Additionally, there exists protection for the exploitation of life (e.g. human, plant, or the environment). Article Four requires:

(a) The protection document shall not be granted if its commercial exploitation violates the Shari’ah.
(b) The protection document shall not be granted if its commercial exploitation is harmful to life, to human, animal or plant health, or is substantially harmful to the environment.

The interpretation of Article four requirements is open to speculation, since they are newly enacted and no reference to violations is readily available. However, practical considerations will limit violations to direct challenges to Shari’a law sensibilities thereby giving patent law the flexibility afforded financial and commercial law in Saudi Arabia. Violations of Article (4) (b) are likely to be similar to limits on higher life forms that are in place for humans or animal-human transgenics in the United States and Europe.

In addition, Saudi Arabia has provisions for compulsory licensing contained in Article 24.83 The requirement that a party seek a standard license via contract must be followed, but if this fails there can be a non-exclusive license to allow the invention to reach the market. This can be reasoned to be a provision for maintaining the public interest and is consistent with shari’a law. A compulsory license can also be granted if the technology is economically significant or requires use of another patent. Generally, the compulsory licensing provisions are broader in scope than what TRIPS allows. However, until invoked and unless challenged these provisions may not lead to significant difficulties.

F. Saudi Arabian’s Seek to Patent Useful Islamic Devices

Saudi Arabia though a strict Islamic country is making progress in enforcing patent rights. The future will tell if this enforcement will spur development, progress, and social reform within the Kingdom. Integration and the growth of technology may be aided if development comes from within the nation. A brief survey of patents applied by Saudi Arabia citizens in foreign countries reveals that many are for aiding one in observing Islamic worship including: Islamic financial screening, special clocks for prayer timing and directions to Mecca, and Islamic Mobile services that offers prayer times. Thus these inventions show that, at least superficially, Muslims are seeking to patent useful devices involved in worship and Islamic life.84 The patenting of useful devices used in Islamic worship may argue for the practical acceptance of patent law with the approval of Shari’a law and adaptation to technological innovation.

VI. CONCLUSIONS

The concepts and tenets of intellectual property law and specifically patent law are not at odds with the basic beliefs of Islamic culture or Shari’a law. Egypt is an example of a fairly secular nation with strong undercurrents of traditional Islamic culture and an established patent law. Egypt is moving their patent law to the “world norm” for enforcement with the goal of invigorating their economy together with other reforms. Saudi Arabia is following a similar path, but from a more basic and modest position, and is much more conservative.

Both nations are treating the patent law as permitted according to basic Shari’a doctrines and neither seems to be rejecting this path. One commentator maintains that cultural divides make acceptance and enforcement of intellectual property distant prospects.85 Another commentator has even put forth the notion of Islam itself as a form of intellectual property. This is based on the notion of Islam is protected knowledge and thus stronger than a mere idea and in fact is a form of knowledge based asset-or intellectual property.86 Muslims act as trustees, not owners of the protected knowledge that is Islam. If patent law truly comports with Shari’a law tenets the innovation and economic progress may actually enable freedom to practice Islam as many wish and desire.

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Footnotes

  1. Jonathan Claypool is a J.D. student at the University of Washington, School of Law.
  2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Mr. Justice Jackson concurring).
  3. Amir H. Khoury, Ancient and Islamic Sources of Intellectual property Protection in the Middle East: A focus on Trademarks, 43 IDEA 152-156, at 155 2003. Principles underlying copyright are found in poetry in “Jahiliya” protecting “the only form of artistic expression” Trademark principles are seen in “brands” placed on cattle and in engravings on statues, serving as source of identification and quality.
  4. Id. at 155.
  5. Id. at 166.
  6. Coffin v. Ogden, 85 U.S. (18 Wall) 120, 21 L.Ed. 821 (1873); Travis v. Baker, 137 F.2d 109, 58 USPQ 558 (CCPA 1943).
  7. See Abu-Ghazaleh Intellectual Property (AGIP) for a subset of countries and a summary table of laws and international intellectual property agreements each is a signatory of, available at, http://www.agip.com/site_content.aspx?page_key=key_summary_table_link1&lang=en.
  8. U.S. Federal News, 2/15/06, State Department Issues Consular Information Sheet on Saudi Arabia, Saudi customs authorities enforce strict regulations concerning importation into Saudi Arabia of such banned items as alcohol products, weapons and any item that is held to be contrary to the tenets of Islam..
  9. Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Cap. U. L. Rev. 1079, 1992. Note: The spelling of Shari’a in this paper was taken form Jamar.
  10. Id, at 1082.
  11. Id.
  12. Amir H. Khoury, supra note 2, at 201.
  13. 35 U.S.C. §271 (2000); See Also, Section 68 of Japan's Patent Law, which states: “A patentee shall have an exclusive right to commercially work the patented invention…”. Japan actually grants a positive right to make or work an invention, but most are negative rights to exclude. This allows public policy to enter where society decides that certain subject matter is not what should be patented.
  14. 35 U.S.C. §101 (2000), “Inventions patentable: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title”.
  15. 35 U.S.C. §§100-103 (2000).
  16. Jamar, supra note 7, at 1084.
  17. Id,. at 1080-1087.
  18. Id.
  19. Jamar, supra note 7, at 1085. Note this is based on a single reference and is not from the Quran or Sunna and is unsupported by other Islamic Jurists from limited sources that have been translated into French and English by the author.
  20. Jamar, supra note 7, at 1087.
  21. Id.
  22. Jamar, supra note 7, at 1089.
  23. See Howard L. Stover and Harold Ullman, Middle East Commercial Law developments 33 Int'l Law. 753, Fall, 1999.
  24. Koury, supra note 2, at 194.
  25. John Carroll, Intellectual Property Rights in the Middle East: A Cultural Perspective, 11 Fordham Intell. Prop. Media & Ent. L.J. 555 at 586.
  26. Roger Schechter and John Thomas, Principles of Patent Law, Second Edition, 2004.
  27. David G. Barker, Troll or no troll? Policing patent usage with an open post-grant review, 2005 DUKELTR 9 at 12.
  28. Jungersen v. Ostby & Bartin Co., 335 U.S. 560, 772, 69 S.Ct 269, 93, L.Ed. 235 (1949).
  29. Jamar, supra note 7, at 1089.
  30. Jamar, supra note 7, at 1106 (see note 69, citing, Quran, IX: 71).
  31. See John Carroll, Intellectual Property Rights in The Middle East: A cultural Perspective, 11 FDMIPMELJ 555.
  32. See Article 27, paragraph 2 of the TRIPS agreement provides: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect odre public or morality, including to protect human, animal, or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.” See also Donna M. Glitter, Incorporating Morality into European Union Biotechnology Patent Law, 19 BTLJ 1 (2001).
  33. em> Barry S. Edwards, “…And on His Farm He had a Geep: Patenting Transgenic Animals”, 2 Minn. Intell. Prop. Rev. 89, at 113, citing 42 U.S.C. §2181 (a) (2000).
  34. Id., at 113, citing, 35 U.S.C. 287(c) (2000).
  35. Egyptian Constitution: Art. 2: “Islam is the Religion of the State. Arabic is its official language, and the principal source of legislation is Islamic Jurisprudence (Shari’a)”.
  36. Erwin Loewenfeld, The Mixed Courts in Egypt as Part of the System of Capitulations after the Treaty of Montreux, Transactions of the Grotius Society, v26, Problems of Peace and War, Papers read before the Society, in the Year 1940, pp83-123, (1940).
  37. Fauzi M. Najjar, The Application of Shari’a Laws in Egypt., Middle East Policy. Volume: 1. Issue: 3, pg 65. (1992).
  38. See Abu-Ghazaleh Intellectual Property (AGIP), (http://www.agip.com): Egypt is a signatory of all but a few international treaties concerning intellectual property and trade. They are a member of the World Trade Organization (WTO) and World Intellectual Property Organization (WIPO), and the Paris Accords, among others. Note the Patent Cooperation Treaty (PCT) system has two stages and ends with a national patent filed in the designated country, but facilitates application through central Patent Offices and results in strategic advantages and significant cost savings.
  39. SeeAbu-Ghazaleh Intellectual Property (AGIP), (http://www.agip.com), Egypt Patent Statute: Law No. 82 of 2002, Pertaining to the Protection of Intellectual Property Rights 2002. Note this law replaces the previous Egyptian Patent statute, Law 132 of 1949, which was repealed.
  40. Pearl, Wall Street Journal, Dec 13 1996 (1996-WL-WSJ11809691).
  41. See Id., Article 10, “The patent shall confer upon the proprietor thereof the right to prevent third parties from exploiting the invention in any manner. The right of the patentee to prevent third parties from importing, using, selling or distributing the goods shall be exhausted, should the patentee market such goods in any State or grant license to third parties in this respect….” See also Article 3, for novelty definition; See also Atrticle 13, detailed description requirements; See also Article 16, The Patent Office shall examine the application for a patent and the attachments thereto in order to verify that the invention is novel, involves an inventive step and industrially applicable, pursuant to the provisions of article (1), (2) and (3) of the law herein”.
  42. Id. at 19.
  43. See, William T. Christiansen II, Patent Term Extension of Pharmaceuticals in Japan: So you sat you Want to Rush That Generic Drug To Market….Good Luck!, 6 Pac. Rim L. & Pol'y J. 613.
  44. See 35 U.S.C. §355; See also, 13 J.L. & Pol'y 311, at 11; Note: The European Union and individual member nations have favored enactment of “supplementary protection certificates” (SPC) that are in essence market protection outside of the patent statutes, but function similarly to patent term extensions.
  45. Shar Aziz, Linking Intellectual Property Rights in Developing Countries with Research and Development, Technology, and Foreign Direct Investment, Policy: A case study of Egypt’s Pharmaceutical Industry., 10 ILSA J. Int'l & Comp. L. 1.
  46. Diamond v. Chakarburty, 447 U.S. 303, 100 S.Ct. 2204, (1980); 35 U.S.C. 101 (2000), (Inventions patentableWhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title).
  47. Ex. Parte Allen, 846 F.2d 77 (Fec Cir. 1988)(non-precedential); U.S. Pat. No. 4,736,866 (Apr. 12, 1988).
  48. Barry S. Edwards, “…And on his farm he had a Geep”: Patenting transgenic animals, 2 Minn. Intell. Prop. Rev. 89, 2001.
  49. Id. at 119.
  50. Jamar, supra note 7, at 1101. Note: patents can be owned by the following: Egyptians; foreign residents; those possessing industrial or commercial businesses in Egypt; foreign nationals from countries that grant patent ownership rights to Egyptians; companies (including foreign); and public agencies.
  51. 2005 CONG US HR 2795, 109th CONGRESS, 1st Session, To amend title 35, United States Code, relating to the procurement, enforcement, and validity of patents, (Jun 08, 2005).
  52. U.S. 35 U.S.C. §102(f) (2000) (prevents a patent issuing where the subject matter was invented by another.
  53. Egypt Patent Statute: Law No. 82 of 2002, See Article 7: …“The employer shall be entitled to all rights resulting from the inventions that have been achieved by the employee or the worker while being bound by the employment or recruitment relationship...”
  54. 35 U.S.C. §261 (2000), Ownership; assignment.
  55. See Article 8: “…An application for a patent of invention, which is submitted by the inventor, within one year as of the date of quitting the public or private establishment… Such period shall be extended to three years, should the worker establish or join a competitive establishment and the invention was a direct yield of his activities and experiences in the previous establishment.”
  56. See Article 23: “The Patent Office - after the approval of a Ministerial Committee established by a decree from the Prime Minister - shall grant compulsory licenses for the exploitation of the invention….”
  57. Shar Aziz, Supra note 43, at 12.
  58. See Article 23, supra note 54.
  59. See Jamar, 21 supra note 7, at 1105, citing Quranic Injunctions to share ones wealth with the poor…”And the likeness of those who spend their wealth in search of Allah’s pleasure, and for the strengthening of their souls, is as the likeness of a garden on a height. The rainstorm smiteth and it bringeth forth its fruit twofold. And if the rainstorm smite it not, then the shower.”
  60. 35 U.S.C. §203 (2002).
  61. Colleen Chen, Cheap drugs at what price to innovation: Does the compulsory licensing of pharmaceuticals hurt innovation?, 18 Berkeley Tech. L.J. 853 at 897-907.
  62. Aspen Publishers, Stiffer Patent Laws in Egypt Succumb to Needs of Poor, 15 NO. 1 J. Proprietary Rts. 20 January, 2003.
  63. See Drug Price Competition and Patent Term Extension Act of 1984: Pub. L. No. 98-417,H.R. 3605 and S. 2748, this was first introduced by Henry Waxman with Orin Hatch agreeing to sponsor the bill in the Senate; 35. U.S.C. §156 (2002); 21 U.S.C. §355 (2002) provided trade offs for increased pharmaceutical patent protection for accelerated generic entry into the market place. This legislation has resulted in both increased generic market share as well as longer periods of patent protection for patented drugs. The debate is ongoing and far from resolved.; See also Allison Ladd, Integra V. Merck: Effects On The Cost And Innovation Of New Drug Products, 13 J.L. & Pol'y 311, at 311; Note: The European Union and individual member nations have favored enactment of “supplementary protection certificates (SPC) that are in essence market protection outside of the patent statutes, but function similarly to patent term extensions.; See, William T. Christiansen II, 6 Pac. Rim L. & Pol'y J. 613.
  64. 35. U.S.C. §156 (2002); 21 U.S.C. §355 (2002).
  65. Shar Aziz, supra note 43, at 2, Countries with significant pharmaceutical industries: U.S, Japan, Germany, Belgium, France, Italy, Netherlands, Sweden, Switzerland, and the U.K.
  66. Egypt Patent Statute: Law No. 82 of 2002, Pertaining to the Protection of Intellectual Property Rights 2002.
  67. Shar Aziz, supra note 43, at 10.
  68. Id. at 7.
  69. Id.
  70. Id. at 21.
  71. Id. at 27.
  72. See Howard L. Stover and Harold Ullman, supra 21, at 754 (Several commercial laws); Shar Aziz, supra note 43, at 27 (Law No. 17).
  73. Shar Aziz, supra note 43, at 31.
  74. Daniel Gifford, Government Policy Towards Innovation in the United States, Canada, and The European Union as Manifested in Patent, Copyright, and Competition Laws., 57 SMULR 1339 at 1341 (2004).
  75. Amir H. Khoury, supra note 2, at 191.
  76. Saudi Arabia is a signatory to many intellectual property and trade treaties, including the World Intellectual Property Organization, though not a contracting party to any of the treaties administered by WIPO; Party to the Patent Cooperation Treaty, Paris Accords, among others. Saudi Arabia is in the process of becoming a member of the World Trade Organization (WTO).
  77. Abu-Ghazaleh Intellectual Property (AGIP), (http://www/agip.com), See Saudi Arabia, Patent, Laws; See also Saudi Arabian Patent Office, (http://www.kacst.edu).
  78. 35 U.S.C. 102(b)(2002).
  79. 35 U.S.C. §102 (2002).
  80. Colin MacKinnon, First Saudi Patents Granted, 19 NO. 1 Middle E. Executive Rep. 6, 1996.
  81. See Saudi Arabian, Issues, and Patents: (http://www.kacst.edu.sa/ar/support/gdp/patent_index.asp).
  82. WTO- Special Watch List 301.
  83. See Abu-Ghazaleh Intellectual Property (AGIP), (http://www.agip.com), See Saudi Arabia, Patents, Laws, Article 24.
  84. See Derwent World Patent: DWPL 2002-589834 (Financial Screening Method that rejects based on Islamic financial principles); DWPL 2002-6642356 (Device for determining distance to and direction to Mecca from any place on earth); DWPL 2003-223940 (Electronic Apparatus for Islamic Worship); DWPL-2005 (Financial Instrument creating Method for Islamic Financial Institution); DEPL 2004-719961 (Islamic clock), among others.
  85. See Generally, John Carrol, Intellectual Property Rights In The Middle East: A Cultural Perspective, 11 Fordham Intell. Prop. Media & Ent. L.J. 555 (2001).
  86. See, Ali Khan, Islam as Intellectual Property “My Lord! Increase Me in Knowledge”, 31 Cumb. L. Rev. 631 (2001).

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