Intellectual Property Through a Non-Western Lens: The Case of Patents in Islamic Law

Tabrez Ebrahim

Law, Business, and Technology - School of Law - University of Western California

Abstract

What is the appropriate construct of patents in Islamic law that can be implicitly derived and justified from theological sources? Major sources of Islamic law do not address and regulate patent protection per se, yet Muslim-majority countries have created and recognized patent laws. Patents are critical to the transformational economic development and innovation initiatives of Muslim-majority countries, and much hangs in the balance of the conceptual, doctrinal, and economic views of the Islamic law. Unlike western countries’ patent laws that are based on a constitutional grant and founded on utilitarian principles, Muslim-majority countries have theological limitations that require exploration of theoretical justifications and implications. This Article examines the intersection of patent law, property law, and Islamic law. It develops the fiqh (Islamic jurisprudence) of patents and provides the first examination of the theory of patents within Islamic law. It draws on primary and secondary sources of Islamic law to elucidate a positive, normative framework for patents and explores related jurisprudential-theological differences among Muslim-majority countries. In doing so, it illustrates how Islamic law’s view of property has evolved from property exceptionalism—the notion that property law should exclude intangible property—toward assimilation of patent doctrine to general legal principles. This Article draws upon usufructs and trusteeship principles to argue that patents—with some modification from western contexts—are justified in Islamic law. It builds upon, significantly expands, and reconceptualizes prevailing interpretation of intellectual property within Islamic law to argue unique features of patents—particularly promotion of knowledge, incentives, and teaching function—justify departure from physical possession of property and general exclusivity concerns. Turning to the normative, this Article cautions against extending exclusive rights too far, provides theoretical implications for patents, and concludes with prescriptions for limitations of patent eligibility in Islamic law, so as to contribute to more holistic framework for innovation law and policy in Muslim-majority countries. This Article provides legal and policy makers, scholars, and theologians with a more robust understanding of how patents can be theoretically justified within Islamic law. In doing so, it helps facilitate certainty and predictability of patent laws for inventors, businesses, universities, ministries, and economic development organizations in Muslim-majority countries. This Article’s main theses and novel contributions include: (1) property theory clarification of intangibles and a justification for the construct of the theory of patents in Islamic law, and (2) implications of the proposed positive, normative framework for patents in Islamic law towards patent eligibility. The normative and theoretical debates about patents through an Islamic lens are important for three reasons—(1) the advancement of Muslim society and for economic development of Muslim-majority countries, (2) alignment with international conventions with impact on international trade and alignment with the United States Patent & Trademark Office IP Attaché Program on improving patent policies, laws, and regulations abroad, and (3) discussion with western patent law academics and policymakers on the consideration of non-western theories as fresh ideas to improve upon patent law policy in western countries, such as the U.S.

Keywords

patent law, Islamic law, property law, fiqh, innovation, economic development, patent eligibility