1st Edition

Biotechnology, Patents and Morality A Deliberative and Participatory Paradigm for Reform

By Maureen O'Sullivan Copyright 2020
    176 Pages
    by Routledge

    176 Pages
    by Routledge

    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.

    General Introduction

    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 Introduction

    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 Patentable and non-patentable inventions, morality and other exemptions in the EPC Filing and oppositions 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 Precursors 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 Morality: universal abhorrence (plants) Morality: balancing test (animals) Morality: morality sidelined? Morality: risk of harm – polls and survey evidence Morality: universal outrage Morality – a case of doctrinal confusion? Morality parameters: narrowing or broadening? Morality and human embryos: a more restrictive approach? Arbitration of morality: who should be responsible? Morality beyond WARF at the EPO Ordre public: the EPO’s new morality?

    1.3.3 Morality in the case law of the CJEU Commentary

    1.3.4 Conclusion

    Chapter Two: Patent Moralities and Their Traditional Adjudications - A Critique

    2.1 Introduction

    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

    2.3.2 Europe

    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

    2.7 Conclusion

    Chapter Three: Decision-Making in Morally Controversial Biotechnological Patent Applications

    3.1 Introduction

    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 Small scale 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

    3.6 Conclusion

    Chapter Four: The Participatory Budget in Brazil

    4.1 Introduction

    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

    4.4 Conclusion

    Chapter Five: Recommendations for Reform and Conclusion

    5.1 Introduction

    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

    5.4 Objections

    5.5 Conclusion



    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.