Biotech Patents and Morality after Brüstle
The article highlights some issues raised by the recent decision of the Court of Justice of European Union in Brüstle v Greenpeace, a widely reported case on the exclusion from patentability of inventions related to human embryonic stem cells (HESCs). The ruling first offers the opportunity to delve into an old debate surrounding patent law, i.e. whether moral aspects should be effectively dealt with by patent officers and judges: in this regard, the author argues that patent offices and courts should act as moral arbiters (as impliedly confirmed in Brüstle) and their task could be facilitated by coupling them with technical experts. The author also stresses that a common concept of morality in the field of biotechnology and in particular HESCs does not exist, which makes it harder for the European Patent Office to decide on ethical issues: possible solutions are highlighted. The Brüstle ruling – the author further notes - may trigger a WTO challenge against the EU and some of its Member states for failing to comply with Article 27(2) of the TRIPS Agreement and might also be invoked in fields other than HESCs, e.g. for opposing the issuance, and challenging the validity, of patents obtained through immoral or unlawful activities such as the misappropriation of genetic resources.
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