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Patents, Morality and Biomedical Innovation in Europe

Nordberg, Ana LU (2019)
Abstract
This paper discusses the existance and scope of themorality exception from patentability, in Article 53 (a) of the European Patent Convention. The analysis will look into the history of the provision, debate its rational and interpretation by reference to three examples of technology areas: stem cell reserach; gene editing and AI/big data analitics.
Bioscience innovation has always generated heated ethical debates in society. The patent system is not immune to such discussions. The European Patent convention contains a morality and ‘ordre public’ exception in Article 53 (a) EPC, preventing patentability on grounds of lack of ethical compliance of the invention with prevailing standards. Many other jurisdictions have similar provisions... (More)
This paper discusses the existance and scope of themorality exception from patentability, in Article 53 (a) of the European Patent Convention. The analysis will look into the history of the provision, debate its rational and interpretation by reference to three examples of technology areas: stem cell reserach; gene editing and AI/big data analitics.
Bioscience innovation has always generated heated ethical debates in society. The patent system is not immune to such discussions. The European Patent convention contains a morality and ‘ordre public’ exception in Article 53 (a) EPC, preventing patentability on grounds of lack of ethical compliance of the invention with prevailing standards. Many other jurisdictions have similar provisions or somehow impose restrictions on patentability based on similar ratio legis. The topic is further regulated in Article 6 of the Biotechnology Directive (which is also adopted in the EPC implementing rules).
The ratio legis of this norm, the standards for its applicability and legitimacy to develop them are far from clear or consensual.
Innovation in cutting edge biosciences implies always a certain level of uncertainty concerning future technological possibilities. The same can be said in regards to any legislative attempt to regulate such technologies. The Biotechnology Directive was enacted in 1998 after a long legislative process. At the time, the academic and policy discussions were based on mere abstract scientific possibilities and imaginary dystopic eugenic futures. Today we are confronted with realistic possibilities for life saving genetic health interventions, that can be made possible provided there is enough incentive to innovation in genetic therapy. Science and technology has progressed considerably in the last 20 years. It will be argued that developments in scientific knowledge and technology are a factor to be taken into consideration in legal interpretation and de lege ferenda proposals.
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author
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
in press
host publication
To be announced - ATRIP congress 2018
editor
Gervais, Daniel and
publisher
Edward Elgar Publishing
language
English
LU publication?
yes
id
98d735e9-661d-4620-a37a-2f4962abeec4
date added to LUP
2019-06-18 09:45:29
date last changed
2019-09-13 12:32:21
@inbook{98d735e9-661d-4620-a37a-2f4962abeec4,
  abstract     = {This paper discusses the existance and scope of themorality exception from patentability, in Article 53 (a) of the European Patent Convention. The analysis will look into the history of the provision, debate its rational and interpretation by reference to three examples of technology areas: stem cell reserach; gene editing and AI/big data analitics.<br/>Bioscience innovation has always generated heated ethical debates in society. The patent system is not immune to such discussions. The European Patent convention contains a morality and ‘ordre public’ exception in Article 53 (a) EPC, preventing patentability on grounds of lack of ethical compliance of the invention with prevailing standards. Many other jurisdictions have similar provisions or somehow impose restrictions on patentability based on similar ratio legis. The topic is further regulated in Article 6 of the Biotechnology Directive (which is also adopted in the EPC implementing rules). <br/>The ratio legis of this norm, the standards for its applicability and legitimacy to develop them are far from clear or consensual. <br/>Innovation in cutting edge biosciences implies always a certain level of uncertainty concerning future technological possibilities. The same can be said in regards to any legislative attempt to regulate such technologies. The Biotechnology Directive was enacted in 1998 after a long legislative process. At the time, the academic and policy discussions were based on mere abstract scientific possibilities and imaginary dystopic eugenic futures. Today we are confronted with realistic possibilities for life saving genetic health interventions, that can be made possible provided there is enough incentive to innovation in genetic therapy. Science and technology has progressed considerably in the last 20 years. It will be argued that developments in scientific knowledge and technology are a factor to be taken into consideration in legal interpretation and de lege ferenda proposals.  <br/>},
  author       = {Nordberg, Ana},
  editor       = {Gervais, Daniel},
  language     = {eng},
  month        = {09},
  publisher    = {Edward Elgar Publishing},
  title        = {Patents, Morality and Biomedical Innovation in Europe},
  year         = {2019},
}