Patents on Life: the patent system, human rights, and politics

The Patents on Life conference continues:

Ingrid Schneider, professor of political science at the University of Hamburg, discussed patent governance, ethics and democracy.  She sees a legitimacy crisis because of an overexpansion in terms of size and an overreaching of traditional boundaries of patent protection.  The patent system is governed by insiders -- a specialized epistemic community with too little responsiveness to the political process and civil society.  Blurred boundaries: 1) boundary between discovery and invention (i.e., reflecting a judgment that technology should be accessible to all); and 2) the ordre public and public policy clause (i.e., reflecting a judgment that no one should have access to the technology in question).  The ordre public exclusion is designed to function as an ex ante control of the social desirability of an invention. There is a concern that the patent community (applicants, attorneys, examiners, specialist judges) exerts more influence on patent law than the legislature does. Do patent offices view applicants as customers, and if so, what does that mean for the public policies underlying our patent system? She explored the patentability of human embryonic research techniques as an example of these dynamics.

Stephen Colecchi, director of the Office of International Justice and Peace at the United States Conference of Catholic Bishops, spoke about lessons from Catholic social teaching pertaining to life patents. What is the impact of life patents on persons who live at the margins? The Church has expressed concern that technological development has not been accompanied by development of human responsibility.  He discussed resources that the American bishops bring to the debate: 1) Catholic social teaching; 2) relationships with the Church in the developing world; 3) experience on the ground working to address challenges in the developing world.  He identified four principles to guide the debate: 1) respect for rights of indigenous people; 2) careful balance of property rights and social welfare; 3) concern that commercial interests are favored over common good; and 4) need for transparency. Nevertheless, multinational corporations exert much more influence on IP than Church or other civil society organizations do. It will be critical that the Church continues to engage in a manner that compensates for the power imbalance between richer and poorer nations, and between civil society and the corporate sphere.

Justin Turner, barrister and former member of the Gene Therapy Advisory Committee, discussed the treatment of embryonic stem cells before the European Patent Office. To draw a conclusion about the morality of a patent claim, an examiner must draw on the constitutional traditions of the country as well as international treaties. One must take a broad view. Is terminating an embryo generally contrary to morality?  No -- there is no unitary principle that terminating embryonic life is immoral; we have the morning-after pill, embryos are necessarily terminated in the course of IVF, etc. Embryos do not have a right to life for purposes of patent law's morality exemption. Patent claims have been rejected but tribunals have not directly answered question of whether it is contrary to morality. He believes that religious politics are playing an important role in the patent system's treatment of the issue; his concern is that the religious objections are not vented properly in the decisions.  The legal tribunals should squarely address whether these patents would be contrary to morality.