Ethics and Patents Gwilym Roberts Partner Kilburn Strode

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 EPC Exceptions 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.

Patent law provisions on morality • 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…

Patent law provisions on morality • plant or animal varieties – can’t patent life

Patent law provisions on morality • 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

Patent law provisions on morality • 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

Patent law provisions on morality • Patents are for stopping people doing things • So exclusions permit people to do things • Not the right place to govern morality – Wrong sort of lawmaker • But can fit into wider scheme

Patents and research exemptions • UKPA 77 s 60 (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 WC 1 R 4 PJ United Kingom T: +44 (0) 20 7539 4200 F: +44 (0) 20 7539 2499 E: ks@kstrode. co. uk W: kstrode. co. uk