Patents and morality should remain separate

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.


  1. Overall I do agree that morality should not be a consideration taken into account by the Patent Office when assessing the patentability of a particular invention, as this position seems to have been reached through the gradual evolution of our current system. Gone are the days when an invention’s utility could be deemed unacceptable if it did not serve a positive social purpose, and thankfully so, as the wider ambit of protection awarded by our contemporary patent system not only allows for greater innovation, but also greater development of commercial trade. The free market is fueled by individual consumer choice – regardless of how morally questionable the product preferences of certain individuals may be (or the manufacturing processes, for producers), these preferences should not be restrained by the Patent Office.

    On the other hand, morality is indeed a fluid concept, as it varies over both time and territory, and because of this latter factor I do not think that it is altogether inappropriate that the European Patent Convention or Article 27(2) of TRIPs place moral restrictions on the patentability of certain inventions. Unlike our federal legislation, the criteria prescribed by these conventions apply broadly (regionally and internationally) to various countries, each of which may have its own perspective of what qualifies as immoral or contrary to the public order. Canada is a liberal and relatively open-minded country, and so within our borders it is acceptable to allow for a generous patent system that disregards issues of morality. To institute an international patent regime that has no restrictions based on morality, though, might be just as controversial as the current system that does maintain these standards, given the diversity of moral opinions throughout different parts of the world.

    Meanwhile, it is worth noting that Canada is not entirely devoid of restrictions in terms of moral assessment – in particular, issues of security that are in effect deemed to be contrary to the “public order.” Under s. 20(7) of our Patent Act, the Minister of Defense is given the discretion to request that certain particulars of a patent be “kept secret” from the public if considered to be overly dangerous or of cause for public concern. Although this provision appears to be reasonable upon first reading (after all, matters of national security are neither for us, nor the Patent Office, nor the courts to decide upon), it becomes somewhat disheartening when you take into account just how vast the possibilities are for innovation to transform a morally reprehensible invention into one that benefits society in the future. For example, who would have thought that the most atrocious and diabolical invention ever created (the nuclear bomb) would also be the source of one of the most important processes for a sustainable future on our planet (renewable nuclear energy)?

    Technological innovation and the corresponding changes in our combined moral outlook can, ultimately, only be enabled with the passage of time; because of this, perhaps the most prudent course of action to take (for the long term) is actually to maintain our patent system the way it is, as one with no moral restrictions.

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