This book critiques the decision-making process in Article 53(a) of the European Patent Convention. To date, such decisions have been taken at high levels of expertise without much public involvement. The book eschews traditional solutions, such as those found within legislative, judicial and patent office realms and instead develops a radical blueprint for how these decisions can be put to the public. By examining wide-scale models of participatory democracy and deliberation, this book fills a significant gap in the literature. It will be invaluable for patent lawyers, academics, practitioners and intellectual property and patent officials.
Table of Contents
Brief introduction to the European patent system
The emergency of morality and its inclusion in European patent law
A tripartite nexus: biotech comes of age, patents proliferate and morality matures
Outstanding disquiet: who gets to decide and how?
A participatory paradigm for deliberative decisions
Chapter One: In Search of a Definition of Morality in European Patent Law
1.1.2 Origins of patent law and its evolution until present times
1.1.3 Patent requirements
1.2 National to International Coverage: changes in protection in both form and substance
1.2.1 The Paris Convention for the Protection of Industrial Property 1883
1.2.2 Universal Declaration of Human Rights 1948
1.2.3 Strasbourg Convention 1963 – an optional morality provision
1.2.4 Patent Cooperation Treaty 1970
1.2.5 European Patent Convention 1973 - morality mandated
188.8.131.52 Patentable and non-patentable inventions, morality and other exemptions in the EPC
184.108.40.206 Filing and oppositions
220.127.116.11 Appeal procedures
1.2.6 Trade Related Aspects of Intellectual Property Rights (TRIPS) 1994
1.2.7 Directive 98/44/EC on the legal protection of biotechnological inventions
1.2.8 Amendment to EPC 2000
1.2.9 Patent Law Treaty 2000
1.2.10 An EU-wide patent
18.104.22.168 Unitary Patent Protection
1.3 European case law on morality and ordre public
1.3.1 At the EPO
1.3.2 The drafting intentions of the EPC
22.214.171.124 Morality: universal abhorrence (plants)
126.96.36.199 Morality: balancing test (animals)
188.8.131.52 Morality: morality sidelined?
184.108.40.206 Morality: risk of harm – polls and survey evidence
220.127.116.11 Morality: universal outrage
18.104.22.168 Morality – a case of doctrinal confusion?
22.214.171.124 Morality parameters: narrowing or broadening?
126.96.36.199 Morality and human embryos: a more restrictive approach?
188.8.131.52 Arbitration of morality: who should be responsible?
184.108.40.206 Morality beyond WARF at the EPO
220.127.116.11 Ordre public: the EPO’s new morality?
1.3.3 Morality in the case law of the CJEU
Chapter Two: Patent Moralities and Their Traditional Adjudications - A Critique
2.2 Untangling morality of the invention and morality in patent grants
2.2.1 Can morality provisions in patent law just be ignored?
2.2.2 Opposition on morality grounds: public voices
2.2.3 Traditional methods of reform
2.3 Would specialised courts better address the issue of morality?
2.3.1 The US
2.4 Legislative clarity
2.5 Reform through the patent/intellectual property office
2.6 Ethics committees
2.6.1 National committees
2.6.2 Other committees
Chapter Three: Decision-Making in Morally Controversial Biotechnological Patent Applications
3.2 Academic calls for more public involvement in biotech patents
3.3 Different ways to facilitate public involvement
3.4 Participation defined
3.4.1 The human right to participate
3.4.2 A United Nations framework for participation
3.4.3 Participation as a reform mechanism?
3.5 Deliberative democracy and its rationale defined
3.5.1 The nature of deliberation: confrontation or comprehending?
3.5.2 Classes of deliberative democracy: elitist or populist?
3.5.3 Early and meaningful input
3.5.4 Deliberative devices and scale
18.104.22.168 Small scale
22.214.171.124 Large scale
3.5.5 Government oversight
3.5.6 Education of the citizenry and inclusion
3.5.7 Location of debate and expert bodies
Chapter Four: The Participatory Budget in Brazil
4.2 Participatory and representative democracy: some general points
4.2.1 Background to the participatory budget
4.2.2 The participatory budget and how it operates
4.2.3 Increase in scope of issues and political organisation
4.2.4 Obligatory participation or encouragement to participate?
4.2.5 Education and educating the educators
4.2.6 Quasi-legality or legislation?
4.2.7 Effect on civic life of participation
4.2.8 The role of the state in approximating representation to participation
4.2.9 Global recognition and transplantability
4.3 Principles of participation for patent reform
Chapter Five: Recommendations for Reform and Conclusion
5.2 Proposed structure of a universal patent suffrage at the EPO
5.2.1 Phase one
5.2.2 Phase two
5.2.3 Phase three
5.3 A model for public educating on technology-related issues
5.3.1 Does education about science present specific challenges?
5.3.2 The participatory right in morally controversial patents
Maureen O’Sullivan, BA, BCL, LLM, PhD. Lecturer (Above the Bar) in Law, National University of Ireland, Galway. Chair, Vegetarian Society of Ireland. Fellow, Oxford Centre for Animal Ethics.