A Capability Approach to the Patent System


Julia Carbone

Date of Award


Document Type

Dissertation - Closed Access

Degree Name

Doctor of Juridical Science (S.J.D.)


Duke University School of Law


The patent system, in its current incarnation, is over 200 years old. Despite, or perhaps because of, its long history, the patent system has never been firmly grounded in political or moral theory. Over time, scholars and courts have attempted to justify the patent system on utilitarian grounds. These justifications, however, seldom match the actual attributes of patent law, are based on empirical conjecture more than fact, and ultimately fail to account for the diversity of stakeholders engaged in innovation.

The goal of this thesis is to ground patent law, and the patent system more broadly, within a political theory that can accommodate its complexity and conflicts: the capability approach to justice. In order to keep this discussion within reasonable bounds, I limit myself to a discussion of the patent system in relation to the life sciences. Despite this limitation, the theory I sketch out likely has implications for the patent system generally. It provides a guide to determining why, when, how, for whom and what types of rights ought to be granted over the use and dissemination of those forms of knowledge concretized in the goods and services in health care. In other words, this thesis asks what would the patent system in the life sciences with its multiple, conflicting interests and features-look like in a society governed by a capabilities-based approach to justice?

Consistent with capability theory, the patent system can only be justified insofar as it promotes human flourishing, measured through a set of capabilities · I deploy wide reflective equilibrium as a deliberative and iterative approach to theory building. In so doing, I triangulate three case studies covering significantly different subject matter (the development of AZT and treatment of HIV/AIDS, the patenting of genes and genetic diagnostic test, and use of traditional knowledge as it relates to the life sciences in India, Brazil and the United States), background theories, and the principles that underlie the capability approach to justice. Through the analysis, I identify key capabilities on which the patent system consistently acts and the conditions that any patent system ought to work to secure in order to promote human flourishing as well as the mechanisms to secure these conditions.

The result is not only a workable approach to the analysis of patent systems with a great degree of convergence on the essential elements that any patent system must possess, which can then be tailored to suit the needs of a given country. Notably, to promote human flourishing over the long term, the patent system - and relevant institutions - must help ensure that knowledge is produced and shared in a way that places humans at the center, fosters collaboration and trust, gives voice to all stakeholders equally, places priority on respect of sovereignty over harmonization, is transparent and accessible, and supports the public infrastructure necessary to support innovation and sharing.

Library of Congress Subject Headings

Patent laws and legislation