The force of empire

Montesquieu observed that legal institutions and principles of one country rarely serve another well. Laws, he argued, depend on political institutions and before one nation decided to adopt the law of another ‘it would be proper to examine beforehand whether they have both the same institutions and the same political law’. Patent systems have not, however, arrived in most developing countries through a careful process of examination and selection by the inhabitants of those countries. The dominant transplant mechanism has been coercion, the military coercion that accompanied processes of colonization of the late nineteenth and early twentieth centuries and then the economic trade coercion deployed by the EU and US in the last quarter of the twentieth century.

Kiribati provides one illustration of how patent systems have spread to developing countries through colonization and empire. The Gilbert and Ellice Islands (now Kiribati and Tuvalu respectively) saw the process of white settlement begin in the 1830s through contact with whalers and copra traders and then the inevitable missionaries. The Islands became a British Protectorate in 1892 and then a colony of the British Crown in 1916. As we saw in Chapter 4 a single patent system for the British Empire was an idea that had been discussed, but what eventuated was a system that gave the UK patent holder a right to register a UK patent in a colony or protectorate of the British Empire that had adopted a law allowing for re-registration of a UK patent.