IP in Islamic Law? Deriving Similar Patent Regimes from John Locke and the Qurʾān

When it comes to new technology and Islamic law, it turns out that the principles of Western intellectual property law are quite similar to Islamic property and contract law, according to Turkey editor Gizem Orbey. On her analysis, the latter permits the same applications as the former.


Major sources of Islamic law are mum as to protecting intellectual property.[1] As such, some Muslim jurists consider intellectual property (“IP”) protection to fall into the “permissive” category of Islamic law. In classical Islamic law, that category means that Muslim political leaders may promulgate de novo laws, such as IP laws, so long as they do not conflict with major Islamic principles.[2] In contrast, some Muslim jurists view IP as too intangible to be property and consider such laws impermissible.[3]

I argue that this debate is misplaced, and that the bases for IP in Islamic law can emerge once the debate is shifted to address the philosophical foundations for patent law in Western and Islamic contexts. Even in the Western tradition, at least when it comes to utility patents (standard “patents,” in technical parlance), the philosophical foundation of the law has never been to protect intangible elements.[4] Rather, U.S. and international patent laws developed from property and contract principles.[5] Inventors and the government are said to contract, in the public interest, to grant inventors temporary monopolies in exchange for tangible embodiments of ideas.[6]

Comparing the writings that America’s Founding Fathers used to formulate U.S. patent law to foundational writings on Islamic property and contract law reveals many commonalities. Contemporary Islamic jurists seeking to harmonize Islamic law with U.S. and international patent law frameworks,[7] but hesitant to protect “intangibles” under sharīʿa,[8] may therefore be able to derive viable Islamic patent frameworks from contract and property principles.

Philosophical Roots of U.S. Patent Law

The Patent Clause of the U.S. Constitution reflects the importance the Founding Fathers placed on “promot[ing] the Process of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[9] Thus, from America’s founding, leaders have seen patents as contractual compromises between inventors and society to promote socio-economic progress.[10]

Thomas Jefferson and James Madison were the primary proponents of a strong patent system, and they codified their work in the 1790 Act from which today’s act descends. [11] Their reliance on Western utilitarianism and o the writings of John Locke are evident.[12] Indeed, Locke’s “Chapter on Property” from his Second Treatise on Government is widely recognized as the foundation for American IP law.[13]

According to Locke’s “labor theory,” God gave the earth to all humans for use, and use requires appropriation.[14] When a human mixes his labor with this common property, he removes it from the state of nature and annexes it to himself, and may do so without external consent.[15] Although Locke does not address patents, the Founding Fathers extrapolated from these principles to fill administrative gaps in extending analogous protections to inventions.[16]

Current U.S. Patent Laws

Under current laws, “[w]hoever invents or discovers any new and useful . . . composition of matter . . . may obtain a patent.”[17] A governmental body issues the patent, representing a contract between government and inventor: The inventor grants the government full disclosure of the invention, and the government makes the disclosure publicly available; in return, the inventor receives a temporary[18], exclusive right to “exclude others from making, using, offering for sale, or selling the invention . . . .”[19]

Significantly, the right to “exclude” is a negative one. It is not a right to own or use the invention, but a temporary right to exclude others from doing so.[20] Once an inventor secures that right, she can make a second contract “around” it with private parties willing to pay in return for a waiver of exclusion—a process called “licensing.” [21] In this process, the property right divides between the inventor, who owns the invention, and the licensee, who leases its use.[22]

Obtaining a patent is not trivial.[23] The invention must be novel, nonobvious, and useful.[24] Most relevantly, the inventor must verify the tangible embodiment of the invention by elaborating the “best mode” of producing it.[25] In sum, it must be more than an idea—it must be a blueprint for a tangible, new thing.

Similarities to Sharīʿa

On close inspection, these foundations of U.S. patent law echo elements of sharīʿa -based contract and property law. This paper focuses on sharīʿa from the Qur’an and the Ottoman Mecelle, a code of Islamic commercial law itself derived from permissive silence. Since U.S. patent law may be thought of as a contracts system—patents as between inventor and state, and licenses as between inventor and private parties[26]—these similarities suggest room for de novo patent regimes derived from sharīʿa principles.

The philosophical parallels are notable. As in Locke’s Treatise, in the Qur’an, all property belongs to God in its natural state,[27] but humans may exclude all other humans from certain property’s use.[28] Likewise, ownership accrues through creative appropriation, by the act of applying one’s labor to make a thing useful.[29]

Further similarities exist in sharīʿa contract law. States may be bound to contracts as private individuals[30], and the Qur’an incites both states and people to make good on their contracts.[31] This comports with allowing nations to be contractual parties acting as both stewards and enforcers of patents.[32] Moreover, tangible property is divisible into use and ownership,[33] and Islamic contracts may take different forms to accord with changing economic realities.[34] This divisibility and flexibility means that patents and licenses can both exist and qualify as contracts. Lastly, sharīʿa discourages indefiniteness (gharar) to protect weak bargainers by reducing contractual uncertainty.[35] Prohibitions on indefiniteness manifest in U.S. laws in the disclosure and “best mode” requirements for patents.

These similarities suggest that deriving an Islamic patent code in line with permissive codes, like the Mecelle, is possible. However, some difficulties exist relating to IP laws that protect less tangible property, like design patents and copyrights, and to incompatibilities between western IP inheritance laws and sharīʿa inheritance. These issues are discussed in separate commentaries.

 

 

 

 

 

 

[1] The Qur’an, the Sunna (life example of Muhammad the prophet), the ijma’ (consensus), and qiyas (analogical reasoning, in the Sunni tradition). See, e.g., Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Cap. U. L. Rev. 1079, 1079–90 (1992).

[2] Id.

[3] Marghīnānī, 2 The Hedaya 92 (1795) provided that one does not amputate the hand of a thief for stealing a book because the thief’s intention is not to steal the book as paper, but the ideas in the book, which was not tangible property.

[4] There is even a movement in the U.S. today to eschew the term “intellectual property” for its rhetorical contribution to the idea of creative exceptionalism, which prioritizes the rights of the inventor over the total social welfare goals patent contracts were originally meant to serve. See, e.g., William Fisher III, The Disaggregation of Intellectual Property: How the Laws of Intellectual Property Have Grown—and Grown Apart, Harv. L. Bull., Summer 2004, at 24, 29–31, available at http://www.law.harvard.edu/news/bulletin/2004/summer/feature_2-1.php (summarizing the key arguments for and against the “disaggregation” of IP regimes); see generally John R. Thomas, The Patenting Of The Liberal Professions, 40 B.C.L. Rev. 1139 (1999) (arguing that patents should be considered temporary monopolies on tangible items).

[5] See William Callyhan Robinson, The Law of Patents for Useful Inventions: Volume 3 191 (Little, Brown, 1980).

[6]Id.; see, e.g., Dewey & Almy Chem. Co v. Mimex Co, 124 F.2d 986 (2d Cir. 1942); Act of Apr. 10, 1790, 1 Stat. 109 (1790) [hereinafter “1790 Patent Act”].

[7] Today’s international patent regime, the Agreement on Trade-Related Aspects of Intellectual Property Rights, closely tracks these U.S. laws and principles. John P. Merges & Patrick F. Duffy, Patent Law and Policy: Cases and Materials, 6th Edition 52­­–57 (2013); see also Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPs] available at http://www.wto.org.

[8] Since patent laws have a large impact on controlling the supply and prices of goods involved in international trade, it behooves countries to understand, monitor, and seek to control how they implement these international laws as they enter the World stage. See, e.g., Rokiah Alavi, Trade Protectionism Under the WTO: The Impact on Muslim Countries, 23 J. Econ. Cooperation 1 (2002).

[9] Const., Art. I, Sec. 8, Clause 8 [hereinafter “Patent Clause”].

[10] See, e.g., Bonito Boats, Inc v. Thundercraft Boats, Inc., 489 U.S. 141 (1989).

[11] See Merges & Duffy, supra note 7 at 675–80.

[12] Id.

[13] Id.

[14] JOHN LOCKE, TWO TREATISES OF GOVERNMENT, SECOND TREATISE, §§ 25-51 (1690).

[15] Other provisions include that exclusive rights are only viable when there are enough of a resource for all to take from it; that rights may not be used nonproductively, for example to destroy a resource or allow it to spoil; and a “doctrine of charity” that provides that when a person has no means to subsist, they have rights to just enough of another person’s “plenty” to allow the starving person to survive. JOHN LOCKE, TWO TREATISES OF GOVERNMENT, SECOND TREATISE, §§ 25-51 (1690).

[16] Notably, they preserved the requirements of utility and embodiment tying IP to regular property first principles, as explained above, serving the primary goal of promoting industry. See Merges & Duffy, supra note 7 at 677; see generally Thomas, supra note 4.

[17] 35 U.S.C. § 101. Though according to this provision, the term “invention” encapsulates “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” this paper narrowly refers in scope to standard utility patents, which protect the “compositions of matter” mentioned herein, though requirements regarding novelty, nonobviousness, usefulness, and mode of enablement apply to all inventions.

[18] Generally, patents are granted for 20-year terms. 2701 Patent Term [R-11.2013] (U.S. patent regulation describing the standard length of a patent term.)

[19] Bonito Boats, Inc v. Thundercraft Boats, Inc., 489 U.S. 141 (1989).

[20] Id.

[21] See Robinson, supra note 5 at 191.

[22] Id.

[23] Another key provision states that inventions already revealed to the public may not be patented, since that would pervert the purpose of the societal bargain that requires inventors to contribute new utilities. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966).

[24] 35 U.S.C. §§ 100–03, 112, 154 (2014).

[25] Id. Additionally, not all subject matter is eligible to qualify as patentable. Laws of nature, abstract ideas, physical phenomena, and humans are all categorically exempt from qualifying as patentable subject matter. 2106 Patent Subject Matter Eligibility [R-11.2013] (a U.S. patent law regulation summarizing the currently applicable doctrines of subject matter eligibility derived from common law).

[26] See Dewey & Almy Chem. Co v. Mimex Co, 124 F.2d 986 (2d Cir. 1942).

[27] Qur’an, 7:129 (“Verily, the earth is Allah’s; He gives it as a heritage to whomsoever He pleases as His servants . . . .”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf.

[28] Quran, 2:189 (“And do not devour . . . a part of the wealth of other people with injustice.”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf.

[29] See, e.g.,Quran, 5:4–5 (“Forbidden to you is the flesh of an animal. . . except that which you have properly slaughtered . . .” and “‘[a]ll good things have been made lawful for you . . . what you have taught the beasts and birds of pray to catch for you, training them for hunting and teaching them of what Allah has taught you.’”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf; see also Mecelle art. 1248–61 (articles of the Ottoman Commercial Code explaining how one acquires and stewards ownership of things that are otherwise public goods) [hereinafter “Ottoman Code”] available at http://www.iium.edu.my/deed/lawbase/al_majalle/; Mecelle, arts. 2164–2169; 1281–1291 (Ottoman Code articles relating to water rights and how one may appropriate water for his own from nature) available at http://www.iium.edu.my/deed/lawbase/al_majalle/.

[30] Qurʾān 9:1-4 (“Excepting those of the idolaters . . . fulfill to these the treaty you have made with them till their term.”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf.

[31] Qurʾān 5:2 (“O ye who believe! Fulfill your compacts.”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf.

[32] Most importantly, philosophies of public policy from the Quran and the Mecelle closely align with U.S. patent law. In the Qur’an, good things—such as, arguably, “Progress in the Sciences and Arts” —are to be promoted by sharīʿa . See Patent Clause, supra note 9; Quran, 9:71 (“And the believers, men and women, and friends of one another. They enjoin good and forbid evil . . .”) available at https://www.alislam.org/quran/Holy-Quran-English.pdf.

The Mecelle also expressly contemplates that laws must change with changing times. Mecelle art. 39 (“[i]t cannot be denied that with a changing of times, the law must also change.”) available at http://www.iium.edu.my/deed/lawbase/al_majalle/. Lastly, various Islamic schools of jurisprudence, such as the Hanafi and Maliki schools, agree that express Quranic laws must sometimes be modified in the name of the public good—confirming there may indeed be room to create de novo patent regimes from sharīʿa principles. For further discussion analysis of such flexibility and public policy in Islamic law, see generally Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Cap. U. L. Rev. 1079 (1992). .

[33] Mecelle, art. 534 (Ottoman Code articles defining contracts for the “hire” or transfer of movable property) available at http://www.iium.edu.my/deed/lawbase/al_majalle/.

[34] Mecelle, art. 39 (Ottoman Code introduction explaining that that laws are meant to adjust with the times) available at http://www.iium.edu.my/deed/lawbase/al_majalle/; Mecelle, art. 44–45 (Ottoman Code introduction explaining that customs can create laws, and that matters between merchants and recognized by them by custom can form contract law) available at http://www.iium.edu.my/deed/lawbase/al_majalle/; Mecelle art. 17 (Ottoman Code introduction explaining that difficulty begets facility, and that laws are meant to adjust to solve problems) available at http://www.iium.edu.my/deed/lawbase/al_majalle/.

[35] Noor Mohammed, Principles of Islamic Contract Law, 6 J.L. & Religion 115 (1989) (quoting Ali Yusuf Ali, The Holy Quran at 86, fn. 241 (1946).