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10 Oxford J. Legal Stud. 278 (1990)
Patent Law in a Time of Change: Non-Obviousness and Biotechnology

handle is hein.journals/oxfjls10 and id is 286 raw text is: Patent Law in a Time of Change: Non-Obviousness and Biotechnology A legal order that has become obsolete and antiquated is a constant source of legal difficulties, for meaningful interpretation requires adaptation to the actual situation. 1 I A recurrent theme in the discourse of intellectual property law over the last decade or so has been the problems posed by the new subject matters that it must accommodate, in particular biotechnology and computer science. Many of these problems have been the subject of statutory intervention, a number of judicial decisions and, especially in relation to computer programs, a growing body of commentary. While there are few who proclaim the death of intellectual property law, there are many who argue that, as it presently stands, the law is incapable of dealing with much of its new subject matter. A variation of this argument is the view that statutory change, be it the Copyright Designs and Patents Act 1988 or statutory amendments, will very quickly be rendered obsolete by the speed of technological change. Despite the diversity of this literature, the common focus has been whether, and in what manner, the products of these new technologies are protected by the law. While recognizing the importance of the adequate protection of intellectual property, this article addresses the interaction of intellectual property law and new technologies from a different perspective. That is, rather than seeing these new technologies as problems, it views the incorporation of technology as providing an opportunity for a better understanding of intellectual property law. In turn, this is based upon the belief that attempts to apply existing concepts and perspectives to new objects reveal basic, taken-for-granted assumptions about those concepts. In short, the attempted application of intellectual property law to a new subject natter provides a useful occasion for discovering more about the explanatory rhetoric which sustains, and the concepts which shape, the discourse of intellectual property law.2 While such an analysis opens up many possibilities for study, this article will concentrate upon the interaction of biotechnology with one particular 'This process leads to a ... theoretical heightening of awareness in the field of law': H.-G. Gadamer, Reason in the Age of Science (1983) 96. 2 In effect this analysis is built upon the idea that when one attempts to interpret new subject matter one gains access, in hermeneutical terms, to the prejudices which shape such interpretations. © Oxford University Press 1990 Oxford Journal of Legal Studies Vol. 10, No. 2

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