The present debate on constitutional rights aims to protect the individual against the intrusive power of the state. Analysing the precarious relationship between art and money, the authors argue that constitutional rights need to be extended into the regimes of private governance. This requires four fundamental changes. (1) Constitutional rights can no longer be limited to the protection of individual actors. Instead, they need to be extended to guarantees of freedom of discourses. (2) The new experience of the twentieth century (...) is that totalizing tendencies have their origin not only in politics, but also in other fields of action, especially in technology, science, and the economy. Thus, a discursive concept of constitutional rights should be directed against any social system with totalizing tendencies. (3) Instead of concentrating on centres of economic and social power, constitutional rights in the private sphere should focus on the specific communicative medium of the expansionist social system involved. (4) This excludes the direct analogy of a ‘right’ as a quasispatial exclusion zone. More significant guarantees of discursive autonomy could be found in a ‘proceduralization’ of constitutional rights. (shrink)

In Generics Ltd v Lundbeck A/S [2009] UKHL 12, the House of Lords affirmed the validity of a patent for a chemical product – an isolated stereoisomer – supported by a method of producing the product, but protecting the chemical product as such independent of the method by which it was made. In so doing, it appears to have resolved a longstanding tension between granting patents for chemical products and requiring that the scope of monopoly rights equiperate with the disclosure (...) in the specification. It also appears to have rejected the Biogen Inc v Medeva plc [1997] RPC 1 (HL) view of the balance to be struck between inventors and the public, and the commitment expressed by Lord Hoffmann in that case to promoting “research and healthy competition”. However, their Lordships’ decision is a limited one, applying only to single isolated chemical products. Further, their support for distinguishing categories of claims leaves scope for adopting a different approach with respect to other types of products. In this article I consider one such approach, consistent with the reasoning of the Biogen case, and focused on the purpose of the patent system and the impact of a patent on the relevant art. Such an approach has support in contemporary law, pre-1977 patent jurisprudence, and the intent of the European drafters themselves. Provided its aim is to ensure proportionate protection, any differential treatment across technological fields ought not to constitute discrimination within the meaning of TRIPS or UK patent jurisprudence. Indeed, such treatment may be required precisely to ensure a technologically-neutral patent system. (shrink)