LAS PANDILLAS 1 Definición

This Article proposes eudemonic intellectual property law.256

The new justification is not meant to be postmodern in the sense that

245. LASCH, supra note 74, at 59, 232 (“A liberal society that reduced the functions of the state to the protection of private property had little room for the concept of civic virtue.”).

246. Id. at 229, 232.

247. See also Chon, supra note 44, at 126-27 (“A spectacular increase in growth has not resulted in a minimally acceptable standard of living for even a quarter of the world's population.”).

248. RESCHER, supra note 158, at 27-28.

249. See generally Chon, supra note 44. 250. Id. at 131-32.

251. Id. at 101 n.21, 131-132, 139, 146.

252. Id. at 127 (citing the WORLD CONSERVATION STRATEGY, supra note 238).

253. Estelle Derclaye, Patent Law’s Role in the Protection of the Environment: Re-Assessing Patent Law and its Justifications in the 21st Century, 40 INT’L REV.INTELL.PROP. &COMPETITION L.249,249 (2009).

254. Derclaye, supra note 236, at 168. 255. Ruse-Khan, supra note 70, at 338-39.

256. This includes at least patents, plant variety rights, designs rights, and also confidential information. Seesupra Part I. The latter is included in TRIPS as part of intellectual property law. See TRIPS, supra note 66, arts. 1, 2, 39. If the new justification did not apply to

this Article necessarily adheres to the postmodern movement, metamodernism, or any current specific doctrine or philosophical movement.257 _{Its goal would be happiness, which would be achieved}

by focusing on needs and imposing limits on progress. These limits would not only promote happiness, but also sustainability, which itself promotes happiness. With no limits to desires and no respect for the earth’s limited resources, people cannot achieve happiness. Inventions would arise not out of desires (greed) but out of a recognition of both human needs and, more generally, the planet’s needs.

This does not mean society must totally stop innovating. Indeed, as Lasch notes, while criticizing the idea of material progress and its prejudicial consequences, people must not take a nostalgic view of the past.258 _{Instead, humans must promote “progress” not as}

an end in itself, but as a tool for achieving happiness while respecting the earth’s living organisms and non-living resources. Technology, and thus patents and related rights, can bring happiness in the sense that they correspond to needs. For example, with technology, inventors can enable food security, invent new pharmaceuticals, create non-polluting, renewable energy, and facilitate sustainable production of goods and services.259

Society should also abandon the term “progress” and use the more neutral term of “development” because people do not inevitably progress in the sense of betterment, and progress is more often associated with improvement than the term development. Using the term “development” acknowledges that innovation is not always beneficial.260 _{People must also acknowledge that they cannot know if}

they will always perpetually develop (one of the wrong assumptions of the ideology of progress). This is why this Article uses the term

inventions covered by confidentiality contracts, inventors may be tempted to resort to such agreements instead of patents in order to avoid patent law’s application.

257. See discussion infra note 264. 258. LASCH, supra note 74, at 14.

259. It is crucial to note that new technology can do this only partly, as public domain technology can also enable us all to drink and eat, cure many diseases, and provide clean energy. In some senses, old technology is better than new technology, especially in the sense that old technology has been vetted through experience to not have adverse effects. See, e.g., Michael Gollin et al., Scenario Planning on the Future of Intellectual Property: Literature Review and Implications for Human Development, in INTELLECTUAL PROPERTY AND HUMAN DEVELOPMENT: CURRENT TRENDS AND FUTURE SCENARIOS 329, 342 (Tzen Wong & Graham Dutfield eds., 2011) (“In agriculture, there are concerns that farming models based on intensive use of biotechnology, often patent protected, are crowding out traditional farming practices and landraces which might be more suited to local conditions . . . .”).

260. Thus intellectual property will be similar to the theory of evolution, which does not imply that humans progress in the sense that they get better, but only implies that they evolve and transform.

“sustainability” rather than “sustainable development.” So justified, patents and related rights will keep greed in check. They will prevent nature from degradation or destruction and may even contribute to its preservation.261 _{In turn, the new approach to these intellectual}

property rights should lead to fewer tensions and wars relating to resources like energy sources and food. As a result, increased individual and collective peace and happiness should also ensue. Adopting this new justification for patents and related rights reintegrates the ethical values that were discarded during the Enlightenment.262 _{Last but not least, the justification this Article}

proposes is doubly legitimate. First, it bases the law on human and global needs, rather than just human wants. Second, it does not rest on the wrong or unprovable assumptions of the progress idea.263

Postmodernists may have been too radical. Science can still lead to happiness. Still, to achieve this goal, technological development must be used for human needs, and not human desires. Maybe this new era could be named the “New Enlightenment” as it enlightens society through experience this time, and not just through ideas.264

D. Implementation of the New Justification in the Substantive Law