Is a Patent a Valid Legal Right Within Islamic Law?
By Professor Tabrez Y. Ebrahim
Is a patent a valid legal right within Islamic law? Ifso, then how should Islamic law construe the scope and reach of the patent right in society? Why do these questions matter to legal scholars and to policymakers? And from practical and client representation standpoints, what should lawyers consider if their law practice encounters patents in Islamic countries? Why should such countries and the U.S. pay more attention to these questions now?
Patents are one type of intellectual property (considered creations of the mind, or intangible property) that gives inventors and the organizations that employ inventors (such as multinational corporations, startups, and universities) exclusive rights to inventions.
Many legal scholars have shown that patents incentivize innovation, send important signals to investors, facilitate research and development, promote collaboration among businesses, serve a teaching function, provide employers with information on employee productivity, and bestow prestige on inventors. Some scholars have argued that patents create monopolistic effects in society, thereby reducing access to technologies and healthcare solutions, and may not garner innovation, incentivize inventors, or teach much.
Amidst this largely western scholarly debate, there has been little attention to the Islamic view of patents, even as patent law has become increasingly important question for Islamic countries.
While patents have existed in and continue to gain more attention in Islamic legal systems, they fit uncomfortably within Islamic law based on conceptual, theological, and theoretical issues. Nonetheless, patents have gained attention and prominence in Muslim countries, which have adopted and enacted nascent patent laws following international treaties and which have heralded the importance of patents as critical for economic development and innovation. Muslim countries’ enactment of national legislation concerning patents requires interpretation from an Islamic theoretical and theological perspective, which differs between countries based on the degree of primacy of Shariah and the school of Islamic jurisprudence.
The question of how patents fit into an Islamic legal system is an exercise of fiqh, or elucidating Shariah through interpretation. Similar to earlier Islamic debates about risk (riba) and uncertainty (gharar) that leadto modern day justifications and industry frameworks for Islamic finance, a theoretical starting point for advancing Islamic patent law and patent systems in Muslim countries requires addressing questions about the permissibility and scope of patents within Islamic law.
Although the Islamic Fiqh Academy of the Organisation of Islamic Cooperation (IFA-OIC), an international Islamic institution for the advanced study of Islamic jurisprudence, has recognized intellectualproperty, it has not shared reasoning for its conclusions that “patent rights are protected by Shari’a.” The central tensions of intellectual property in Islamic law pertain to whether the meaning of property in Islamic law includes intangibles and the conflict between public interests and private property rights.
In my law review article, Intellectual Property Through a Non-Western Lens: Patents in Islamic Law, I argue that patents are permissible in an Islamic legal system. In so doing, I provide theoretically and theologically sound justifications for patents in an Islamic legal system, while I reason that the reach of patents is narrower than in western legal systems due to morality, ethics, and public interest considerations. In developing the fiqh of patents, I develop a conceptual framework for patents in Islamic law and provide commercial justifications, while recognizing limitations and institutional design for their administration.
My publication is meant for an audience of law professors, policymakers, jurists, economists, and theologians. However, it should help lawyers recognize that patents in Islamic legal systems present uniquelegal and practical considerations in law practice involving patent prosecution, patent litigation, trade secrets, licensing, technology transfer, international business transactions, and corporate law.
Moreover, my publication provides a new and fresh perspective to western societies, which could benefit from an Islamic vision that gives attention to both the material world (such as permissible private property rights) and to equitable aspects of society’s well-being (such as limitations on the reach of patents to address access and societal relations issues). Indeed, the West is indebted to the rich heritage of the golden age of Islamic contributions that advanced society, and a vision of the fiqh of patents could serve asanother valuable contribution.
Tabrez Y. Ebrahim is a law professor and a registered U.S. patent attorney. His primary scholarship concerns patent law, business law, and law and technology. He graduated with a J.D. degree from Northwestern University Pritzker School of Law, a M.B.A. degree from Northwestern University Kellogg School of Management, a LL.M. degree from University of Houston Law Center, a M.S. degree in mechanical engineering from Stanford University, and a B.S. degree in mechanical engineering (with High Honors) from the University of Texas at Austin. He is an Associate Professor of Law at California Western School of Law, a Scholar at George Mason University's Center for Intellectual Property x Innovation Policy, a Senior Cyber Law Researcher at William & Mary Law School's Center for Legal & Court Technology, an Ostrom Visiting Scholar at Indiana University, and a Visiting Fellow at the University of Nebraska.
