The United States’ liberal approach to extending patent protection is best illustrated by the court in the Diamond v. Diehr case, where it states “anything under the sun that is made by man” is patentable as an invention. As Professor David Vaver opines in his text Intellectual Property Law: Copyright, Patents, Trademarks, the US courts’ decisions seem tied to US economic policy, and its best interests (p. 120). One can easily see how American capitalist ideas of “The American Way” are at play, where there everything can be made into a commodity, and the primary motivation for research and innovation is the pursuit of profit. However, in terms of policy, this approach is questionable on a number of fronts.
Firstly, such a broad interpretation of what is a patentable invention leads to results which are, quite frankly, patently absurd. As Jamie Isbestor pointed out in a recent lecture, there are American patents for beer umbrellas, combination writing instruments and dental floss holders, and scuba diving equipment for dogs (Osgoode Hall, October 11, 2007). While there may be those who celebrate the fact that fido can now accompany them on their deep sea adventures, or that they can multitask by simultaneously penning a letter and tending to their dental hygiene, it’s doubtful that there are legions out there clamouring for these seemingly uninventive rip offs of existing products. An umbrella for a beer bottle could just as easily be discovered by someone at a poolside who, after finishing a parasol-sporting drink, happens to order a cold one and serendipitously transfers the tiny umbrella to his beer bottle, than it could from any concerted toil and effort. One would be right to question whether a government issued monopoly on profits for 20 years should attach to such limited inventive effort. There should be a higher bar for the minimum contribution to society required for the quid pro quo of patent protection, and not just “anything under the sun that is made by man”.
However, at the other extreme, another questionable implication of a broad patent policy has much more serious consequences. Here the concern is not that the effort hardly deserves patent, but rather whether patent should be denied on grounds of morality. Specifically, this concern arises in the granting of patents in the end results of genetic manipulation in higher life forms. The Harvard College v. Canada (Commissioner of Patents) case is an example of how patent rights were granted in the US for a genetically altered mouse itself, in addition to the activation sequence. The Supreme Court of Canada wisely decided against extending patent protection to higher life forms, in the Canadian context. If the courts can grant patents in genetically engineered mice, what could stop anyone from ultimately patenting genetically engineered human beings? Indeed Vaver also refers to a case in 1996, when Papua New Guinea was involved in a dispute with the US regarding a patent claim in human cell-lines (p. 126). There is also the well-known case of Moore v. Regents of the University of California, also involving human cell-lines, which raises serious ethical and moral questions about taking human body parts, without consent. In my view, there should also be an upper limit on what is patentable. Patents should be granted for processes, but society should not reward the final products of the harvesting of human body parts with a state-sponsored patent monopoly on the resulting profits. There is some subject matter that goes beyond valuation in mere dollars and cents
But while Canada may have stood its ground against the excesses of the US approach in the Harvard mouse’s case, it has not been as successful in other areas. One such case was the extension of patent protection not only to processes for developing medicine in food, but in the actual products themselves (Vaver, page 127). The prior Canadian approach, which provided patents in the processes and imposed licensing schemes that ensured low rates of royalty, was a much fairer approach. It balanced the need to promote innovation with the need to protect the public interest by ensuring patent monopolies did not result in high prices. There is something unseemly about pharmaceutical companies being able to hold sick people hostage, by dangling prohibitively priced cures in front of them, all with the state’s blessing. Yet, that is essentially the situation we now have in Canada as well.
The approach to patents followed by our neighbours to the south is problematic because it is too broad. One the one hand, superfluous inventions are granted protection through patent rights, when it’s questionable that any significant contribution is being made to society in return. On the other hand we have patents being extended to the products of the exploitation of higher life forms, and innovation in food and medicine, where patent protection is morally and ethically questionable. Rather than keeping the focus on profits and economic policy, patent protection, as a government granted right in exchange for publication of an invention, should be focused on the greater public good. It should be more tightly confined on both ends, to avoid extending it to either the absurd, or the unethical.