Natural law theory

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The theory of natural law - also known as the theory of property - is a positive theory to justify the state granting of a - time-limited - exclusive right in the form of a patent to the inventor (or his legal successor ), Section 6 of the Patent Act (PatG).

Need to justify patent grant

It is generally considered necessary to justify the granting of patents because monopolies are fundamentally in conflict with unhindered competition between market participants, one of the most important components of the free and social market economy that has been in place in the Federal Republic of Germany since Alfred Müller-Armack . Monopolies are an obstacle to free competition because they give an individual market participant, namely the monopoly owner, an advantage over other market participants.

Historical origins of natural law theory

The theory of natural law has its modern origin in the time of the Renaissance , when the individual was rediscovered and, as a result, the human being returned to the center of thought. It was the epoch of Leonardo da Vinci (1452–1519), in which new discoveries were made in the natural sciences and technology. Against this background, the conviction that emerged at the time and was later consolidated by the philosophy of the Enlightenment and by the doctrine of natural law must be seen that the creative and imaginative man has a natural property in his ideas. The natural law notion that the intellectual acquires natural ownership of his work product was finally recognized as a human right in the French Revolution and was incorporated into the law of January 7, 1791 with the following words: Toute découverte ou nouvelle invention est la propriété de son author . (German: Every discovery or new invention is the property of its author.)

Basic concepts of natural law theory

The theory of natural law equates the inventor's right to his idea fictitiously (see above, quote), to the right in rem of the owner of a thing (cf. § 903 sentence 1 BGB ). Undeniable is because a certain similarity between tangible property law and intellectual property law . In this way, the right to inventor is property law like property law. There are also certain parallels in terms of social character. In the case of property law, not only property as such - through Article 14.1 of the Basic Law - but also its social component - through paragraph 2 of the aforementioned fundamental right - has constitutional status . Nevertheless, the social character of inventor law is even more important. Because this has - because of its limited duration - from the outset the germ of one day to become free for the general public. In contrast, property ownership is a right that is unlimited in time.

criticism

Regardless of the similarities described above between the inventor's right to his idea and the right of the owner of a thing, equating the two rights from a legal dogmatic point of view is incorrect. Because the two legal objects - here one thing, there an immaterial good (the invention) - are fundamentally different. There is already an essential difference in the length of time the rule granted by the two comparative rights: the inventor's right to his invention is limited in time by the relevant provisions of the Patent Act , while property right is an "eternal" right. In addition, the inventor's right is not only property right (like property right), but also personality right at the same time, because there is a peculiar relationship between the inventor and his intellectual creation that contains personality elements.

In the practice of economic activity, after all, the theory of natural law is less important than the theory of reward and incentive theory . This is already expressed in a decision of the Federal Court of Justice from 1955 , where the old natural law idea of intellectual property is reaffirmed, but at the same time there is talk of a “fair wage” for the inventor.

See also

Individual evidence

  1. ↑ Dietrich Scheffler, The German Patent System and Medium-Sized Industry - A theoretical and empirical investigation, (Diss.), Stuttgart 1986, p. 157 f.
  2. ↑ Quoted from: Bernhardt, W., The importance of patent protection in industrial society, Cologne, Berlin, Bonn, Munich 1974, p. 8.
  3. ↑ Bernhardt, (Individual Ref. 2), p. 9
  4. ↑ BGH of May 18, 1955, in: BGHZ, vol. 17, p. 267 (278)

literature

  • Krasser, R., Textbook of Patent Law, 4th Edition, Munich 1986
  • Müller-Armack, A., Economic Management and Market Economy, Hamburg 1947
  • Müller-Armack, A. u. a. (Ed.), Contributions to the Order of Economy and Society, Cologne 1966

Web links

  • Patent theory [1]
  • Intellectual property law - social impact [2]
  • Patent Theories - Forum: Patent [3]