Morality in Patents

There are many challenges in developing patents, particularly in the biotechnology sector. Patents exclude inventions that are contrary to morality. For example, biotechnology inventions, such as human embryonic stem cells and germ line therapies, can give rise to morality issues. But how does one assess morality?

Morality and its limits could be considered to be subjective. There are a number of sociological theories of morality that can form a framework on which an analysis can be created around morally questionable topics. Moral theories include: Utilitarianism; this theory implies that if an invention maximises happiness, it could be considered moral. Can utilitarianism reliably judge happiness? Another theory is moral subjectivism; this assesses what is right or wrong. Patents need to consider if they are morally acceptable in society. Once again, the ability to judge whether an invention is right or wrong is subjective and not entirely reliable.

There are a number of cases that highlight difficulties IP professionals face when assessing morality. These have included the case of OncoMouse (a genetically engineered mouse test on, to cure cancer). OncoMouse was judged to not fall outside of patentable inventions and was therefore, granted a patent. However, on the other hand, the WARF case (a patent involving primate embryonic stem cells) noted that, under Article 6 (2)(c) of the Patents Act, inventions that include include human embryonic stem cells are immediately classed as immoral. This highlights the advantage of using an IP professional to advise on the patentability of your invention. Thereby, minimising the risk of your invention infringing morality guidelines.

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