ethics and patents gwilym roberts partner, kilburn & strode 25.11.9 kilburn & strode llp |...

Contents

• Reminder: patents and the patent system

• Patent law provisions on morality• Patents and research exemptions• Ethical considerations for patent

practitioners• Is patenting ethical?

– Developing nations– Is the policy right?

Patents and the patent system

• History

• Requirements

• The system

• The nature of an exclusive right

• Policy: The contract with the state

Patent law provisions on morality

• Article 53 EPCExceptions to patentability

• European patents shall not be granted in respect of:

• (a) inventions the commercial exploitation of which would be contrary to "ordre public" or morality; such 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;

• (b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof;

• (c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.


• contrary to "ordre public" or morality– Not just against the law– How moral is that!

• Landmines, bombs – But security provisions desinged to

catch these for government use…


• plant or animal varieties– can’t patent life


• But recall what patents are for– They don’t let you do things– They let you stop others– So doesn’t this provide (welcome)

control?– Otherwise, everyone could do it– But you could licence it– Not if it was otherwise prohibited– Exactly, what’s it got to do with patents


• methods for treatment etc.• so doctors can save lives without a

writ• But can patent medical devices• And can patent steps leading up to,

but excluding actual therapy etc.– Eg turning tap with elbow– Parking in doctor’s space


• Patents are for stopping people doing things

• So exclusions permit people to do things

• Not the right place to govern morality– Wrong sort of law– Wrong sort of lawmaker

• But can fit into wider scheme

Patents and research exemptions

• UKPA77 s60 (5) –exemptions to infringing acts:• (a) it is done privately and for purposes which

are not commercial;• (b) it is done for experimental purposes relating

to the subject-matter of the invention• (c) it consists of the extemporaneous preparation

in a pharmacy of a medicine …• (parts of planes)…• (g) it consists of the use by a farmer of the

product of his harvest for propagation …• (h) it consists of the use of an animal or animal

reproductive material by a farmer for an agricultural purpose

Patents and research exemptions

• Private/non-commercial– Practical as well as fair

• Experimental– In relation to invention – prevents

research?

• Drugs, seeds and sperm– Stopping the terminators

Ethical considerations for patent practitioners

• We don’t:– File loads of non-inventive cases and

threaten non-IP literate sources– Write claims to airports– Run off with other people’s ideas

• We (some people) do:– File valid patents for purposes of

extortion

Is patenting ethical?

• The Constant Gardener issue– Access to medicine– Development of industry– Traditional Knowledge

• The Three Planets issue– Innovation at all costs – the

unchallenged presumption

Upshot

• Patenting of unethical matter not really the concern

• Unethical use of patents a problem – but mostly for the reputation of the system

• Assumptions beneath public policy may be biggest issue – but patents not the root

Thank you.

Kilburn & Strode LLP

20 Red Lion Street

London

WC1R 4PJ

United Kingom

T: +44 (0) 20 7539 4200

F: +44 (0) 20 7539 2499

E: [email protected]

W: kstrode.co.uk

ethics and patents gwilym roberts partner, kilburn & strode 25.11.9 kilburn & strode llp |...

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