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Should Morality be Within the Purview of Patent Law?

Beth Arnold, M.S., J.D., Foley, Hoag & Eliot

Patents are Economic in Purpose

“Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article 1, section 8 of the U.S. Constitution)

Morality is not a Patentability Consideration in the US. It is in Europe.


  • Any new, useful, and nonobvious machine, manufacture or composition of matter is patentable.
  • “Everything under the sun made by man.” (Diamond v Chakrabarty)


EPC law (Art. 53(a)) and EC Biotech Patent Directive exclude inventions, the commercial exploitation of which would be contrary to the “ordre public”.

The EC Directive Gives a Non-exhaustion List of Immoral Inventions

  • Processes for cloning humans;
  • Processes for modifying human germline;
  • Use of human embryos for industrial or commercial purposes;
  • Processes for modifying animal germline, which cause suffering without substantial medical benefit
  • Plant & animal varieties and essential biological processes for their production

Arguments for Amending the Law to Prohibit Patenting of Certain Technologies

  • Will disincentivize investment in and ultimate commercialization of the technology
  • Upholds the sanctity of life and human dignity
  • Addresses public suspicion and distrust, perhaps facilitating acceptance of other technologies.

Arguments for Maintaining the Status Quo

  • Will threaten the US’s competitive advantage in biotechnology
  • There are other more effective means for regulating life science technologies (NIH, FDA, EPA, USDA)
  • Moral norms change over time.
  • Biotechnology does not pose a direct threat to a readily identifiable norm.

So Which Technologies are Morally Unacceptable?

  • Human Cloning?
  • Transgenic Animals?
  • Embryo Technologies?
  • Genetically Modified Foods?
  • Genes?

Email link | Feedback | Contributed by: Boston University. Video adapted from the Issues for the Millennium Workshop

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