Vital parameters for patent morality a question of form

Abstract

At the interface between patent law and biotechnology, a debate has arisen over the application of the morality provision, designed to ensure the future development of society on a principled basis. This article reviews the provision in its European context, adopting UK and European perspectives for analysis. Analysis of the provision identifies that there is ambiguity regarding interpretation of the morality provision, which has lead to inconsistent application between the European Patent Office and the European Patent Boards. This article assesses the provision in the context of the patent system and offers a legal philosophy framework within which to understand the provision as conveying: a methodology, a standard of morality and a source for that standard which can be utilized to describe the possibilities. It then re-centres the debate to its practical context in order to demonstrate that the patent system removes the options which are inapplicable: advocating valid and achievable methods for complying with the law both nationally and on a European level. The morality provision has become an accepted ‘wild card’ in assessing the patentability of biotechnology: it has come to rely upon the identification of danger areas in innovation that may trigger moral objections. This falls far short of the legal certainty which is so vital to biotechnological growth. In the face of the impending implementation of the unitary patent right across Europe, the importance of achieving a predictable and practical approach to applying the morality cannot be underestimated.

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