Considering abuse of rights



According to McGill University Law professor Pierre-Emmanuel Moyse, Canada's intellectual property laws are often inadequate and can be applied in an abusive manner that is contrary to the spirit of the law.

This is the case, for example, with "patent trolls", companies or individuals whose principal or even sole economic activity consists of acquiring patents in order to make money through enforcement of patent rights.

Abuse of rights has been invoked in several important cases in Canada and the United States. 

Moyse's work shows that the civil law doctrine of abuse of rights may play an important role in rebalancing Canadian intellectual property laws, which were developed within the Common Law tradition. The concept of abuse of right is based on the view that every right has a social function. It is the responsibility of the courts to ensure that rights are not applied in a manner contrary to this function.

In the case of intellectual property, the courts must strike a balance between the right to free competition and the right to access to knowledge. Abuse of rights has been invoked in several important cases in Canada and the United States. The McGill researcher has had articles published on the subject in the McGill Law Journal and in Thémis, and has presented his ideas at many conferences and symposia not only in Québec and the United States, but also in Algeria, France and Switzerland.