Human Ingenuity, Emerging Technologies & IPR – Need for setting Doctrine of Constitutional Morality as Standard

Abstract

Human ingenuity erased the boundaries of innovations, and created such technologies which the past generations wouldn’t have dreamed of. Intellectual Property Rights are to promote and encourage only those innovations which are contributing for the societal development and common good and complies with the social morality standard. As long as the social morality standard laid down in IPR is not influenced by the dominant cultural norms of a society; by marginalizing the minority or individual perspectives, it can represent the societal demands as a whole. Butwhat if the social morality standard is representing only the majority in the society and is in direct conflict with the constitutional morality, the normative framework offered by our constitution which includes majority, minority and even one individual’s perspective within its ambit? Constitutional morality provides a stable, principled foundation that transcends societal changes and biases and promotes the principles of inclusive development, equality, justice, dignity and fraternity. Post Navtej Singh Johar, Joseph Shine and other judgments, thequestion arise that whether the IP regulators can reject the grant of IP protection to an invention which though is complying with the social morality standard, but fails to comply with the constitutional morality standard? Whether the approach of the US Supreme Court in cases such as Bedford and Juicy Whip I, applying ‘progressive provision’ laid down in Article I, § 8, Clause 8 of the American constitution to IP cases, on and above the legislative limitations, illustrates the duty of the courts to act beyond legislative limitations to uphold the constitutional morality when necessity demands? The paper argues that applying constitutional morality as a catalyst over social morality provides a more consistent, equitable, and principled basis for navigating the complex landscape of emerging technologies and IPR. This paper explores the distinction between constitutional morality and social orality, proposing the former as a guiding principle to harmonize the intersection of human ingenuity, technological advancement and IPR.