Chapter 2 Challenging the Normative Impact of Technological Innovation

From the Norm Development Process of the Paris Convention to Global Patent Justice

In: Intellectual Property and the Law of Nations, 1860-1920
Author:
Johannes Thumfart
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Abstract

This contribution discusses the international IP regime as a result of the norm development process initiated by the Paris Convention by means of Intellectual History, Legal and Political Philosophy and the Philosophy of Technology. The first two Sections focus on a crucial event that characterized the path-dependency of the IP regime brought about by the Paris Convention, the Vienna Patent Congress of 1873 and the Siemens brothers’ (founders of the Siemens AG) involvement in this congress. A close reading of the debate at this congress unveils a remarkably open and heated political discussion about patent law internationalization, involving arguments regarding natural rights, national economy, Communism, Liberalism and the critique of Feudalism, which is typical of the transitional and turbulent nineteenth century. The Siemens brothers, private entrepreneurs and patent rights activists, elevated this debate to another level by justifying patent law internationalization with the apolitical idea of international technological progress. From this historical case study, a general discussion of the normative impact of technological innovation is developed in the third Section, focusing on the normative implications of engineering processes and technological standardization. Based on concepts of Carl Schmitt, the Siemens brothers’ resolution of the debate in Vienna is interpreted as a process of depoliticization and neutralization. Employing the philosophy of technology of Bernard Stiegler, it is demonstrated that a merely technical perspective regarding the normative justification of law cuts too short. Therefore, in the final Section, a normative framework of global patent justice is developed that critically engages with the theories of John Rawls and Thomas Pogge, emphasizing national regulatory sovereignty, but also sketching equitable solutions beyond the nation-state.

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