Tamsin Thomas is a JD Candidate at Osgoode Hall Law School and is taking the Patent Law class.
At the beginning of March 2010, Greenpeace Germany and others unsuccessfully challenged a patent on a method of increasing milk supply in cattle. Cattle can be made to produce larger amounts of milk when they are genetically modified to express a particular gene sequence (European Patent EP 1330552 granted in January 2007).(1) Greenpeace Germany and others argued that the patent should be revoked on the basis that the invention causes excessive suffering of the genetically altered animals without any substantial benefit to man and beast. Accordingly it would be in contradiction to the European Patent Convention requirement that where the commercial exploitation of the invention would be contrary to public order or morality, the invention is not patentable.
A three member committee including patent examiners and a lawyer were not convinced of Greenpeace Germany’s arguments. There is no question that the genetic modification of the food we eat is a highly controversial subject and I am not entirely sure where I stand on the issue, however, the patent office seems to be a highly inappropriate forum for staging a debate on whether commercial exploitation of that invention would in some way be immoral.
The European Patent Convention is in line with Article 27.2 of TRIPs which states that member states may exclude particular inventions from patentability in order to protect “ordre public or morality.” Canada’s Patent Act does not contain such a provision and I think this is for good reason. Patent examiners are simply not equipped to deal with moral and public policy concerns. Secondly, assessing and rejecting a patent application on the basis of morality undermines the patent system’s basic goals of rewarding and encouraging innovation.
According to a recent study, as of 2009, more than 80% of patent examiners had fewer than three years of experience at the US Patent Office. Less than 10% had ten or more years of experience.(2) There must be some value in experience as the US government is looking to hire back experienced patent examiners in order to deal with a growing backlog of pending patent applications. In addition to high turnover and low levels of experience, patent examiners usually, if not always, have technical training and little training in weighing morality or policy concerns. The novelty, obviousness and utility of a particular invention are not as precise and easy to determine as they at first appear. The addition of an even less precise criterion would be alarming to say the least. To state the obvious, biotechnology is particularly fraught with policy concerns including women’s rights (in the case of assisted human reproduction for example), environmental concerns (such as preserving biodiversity) and human rights (is it immoral that commercial exploitation would benefit only the rich?) to name only a few. How can a patent examiner possibly be equipped to consider these concerns when presented with an invention of biotechnology for example? In addition, what is “immoral” today could be highly desirable in the not too distant future. The patent office should stay away from these sorts of public policy debates.
Additionally, the goals of the patent system of rewarding and encouraging innovation seem to be best served by evaluating patent applications according to the usual criteria with no inquiry into morality. Progress occurs incrementally. New ideas are built upon existing knowledge. Who is to say that a particularly repulsive invention cannot be modified into a more socially acceptable and useful application? Thus innovation is served by putting as much information into the public domain. Whether or not the commercial exploitation of something would be immoral or against public order is irrelevant to whether that invention is innovative. Legislatures, courts and the marketplace are the appropriate fora for these types of debates.