Thoughts on the Scope and Operation of Morality Clauses in Patent Law

Abstract

The European Patent Convention in Article 53 requires that “European patents shall not be granted in respect of: a) inventions the publication or exploitation of which would be contrary to “ordre public ” or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States.”2 The Norwegian Patent Act prohibits the granting of patents “the use of which would be contrary to morality or public order”3. This was developed in 2003 4 such that the prohibition was specifically extended under section 1.b: “Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality. Such exploitation shall not be deemed so contrary merely because it is prohibited by law or regulation”. This extension then specifies that certain applications relating to human cloning, human embryos, and genetic modification of humans and animals are prohibited under this provision. 5 In responding to the request to consider how a specialist ethics commission could consider the operation of these “morality clauses ” or morality requirements, we have considered two things: first, how case law shows such questions have been considered by courts and tribunals; and second, whether there are broader considerations that could apply in contrast with the case law approach, particularly in relation to the nature of the grant of a patent, the underpinning presumption of private property rights, and the tendency towards a utilitarian calculus. We have used three case studies to focus our thoughts. 1 Djims Milius is a doctoral student and David Townend is a Senior Lecturer in the Faculty of

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