Intellectual property rights... and those who abuse them!

We live in a society that is highly regulated by laws and rights. However, some rights may be twisted from their original spirit and applied in a manner contrary to their intended function. This is known as "abuse of rights".

His approach provides a glimpse of a Canadian law where the courts would have more leeway.

McGill University Law professor Pierre Emmanuel Moyse believes that the concept of abuse of rights may be helpful in understanding, and eventually correcting, certain abuses of intellectual property rights in Canada. For example, he cites the famous "patent trolls", companies whose sole function is to purchase patents in order to extort money from manufacturing companies by offering to sell them the patent at an exorbitant price or by threatening them with prosecution for patent infringement.

His approach provides a glimpse of a Canadian law where the courts would have more leeway to curb excess and favour free competition and access to knowledge. His thesis is original in that it forces a dialogue between a concept from civil law (the abuse of rights) and the legal tradition that gave rise to Canadian intellectual property rights (common law).

Moyse's approach was discussed in a seminal article entitled L'anténorme, submitted for publication in the McGill Law Journal. In practice, it provides arguments to counter the misuse of intellectual property rights. Abuse of rights has been invoked in several important cases, notably in Canada where it is discussed in the case of Philip Morris Products S.A. v. Marlboro Canada Limited (2010), a dispute over trademark issues.