Ethics and Patents

1. Ethics and Patents Gwilym Roberts Partner, Kilburn & Strode 25.11.9 Kilburn & Strode LLP | 20 Red Lion Street | London | WC1R 4PJ | United Kingom T: +44 (0) 20 7539 4200 | F: +44 (0) 20 7539 2499 | E: ks@kstrode.co.uk | W: kstrode.co.uk

2. 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?

3. Patents and the patent system • History • Requirements • The system • The nature of an exclusive right • Policy: The contract with the state

4. Patent law provisions on morality • Article 53 EPCExceptions 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.

5. 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…

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

7. 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

8. 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

9. 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 law • Wrong sort of lawmaker • But can fit into wider scheme

10. Patents and research exemptions • UKPA77 s60 (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

11. 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

12. 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

13. 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

14. 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

15. Thank you. Kilburn & Strode LLP 20 Red Lion Street London WC1R 4PJ United Kingom T: +44 (0) 20 7539 4200 F: +44 (0) 20 7539 2499 E: ks@kstrode.co.uk W: kstrode.co.uk