Patenting life
Our European patent system is self-financing, self-sufficient and almost self-legislating. It works on two, intertwined levels. It is complex, has its own courts, and perhaps, some may say, the very last thing we need is further legislative interest by a body that, until recently, has had little to do with patenting in Europe. Yet this is what the European Council and Parliament did when trying to legislate for patents and morality in 1998 via Directive 98/44/EC on the legal protection of biotechnological inventions—the Biotech Directive.
It says much, but principal amongst its objects is to somehow enforce morality; patents must not be immoral, so the Biotech Directive tells us. Oh yes, and you cannot actually patent the human body “at the various stages of its formation and development”. That, for most of us, is what it took eight pages of directive to tell us. Morality includes not being able to patent uses of human embryos for industrial or commercial purposes.
This human body objection is not really an objection at all. You never could patent a discovery, so it seems that patent law, in this respect at least, is being restated. It is the latter prohibition—patents shall not monopolise uses of human embryos—that causes more comment.
There is undoubtedly a case for saying that science should not do certain things. Two questions arise: what should science not do and who should decide? These questions are of supreme importance and a few observations may be made about them. The first is that where monopolies are conferred, it is generally a bad thing; though when thought about and talked about as part of some democratic process, it can be a good thing.
The second is that whatever science is or is not allowed to do, it is related, but only in part, to the question of what scientists are allowed to patent. It follows that scientists will not necessarily be put off from research simply because they cannot (or in some cases, will not) obtain patents at the end. This is not an uncommon situation. Third, questions of morality are not for lawyers, judges, politicians, churchmen or anybody else to decide.
When people speak of things being moral or immoral, they are really trying to tell you that your thinking is being done for you. Any sort of examination, even if by the most accidental philosopher, will reveal that morality is easy to define—it is concerned with the notion of what is right and wrong—and almost impossible to apply. Instead of morality, why don’t we have a set of predefined rules that everybody understands—the law?
The Biotech Directive, a piece of Eurolegislation, can be the subject of consideration of what used to be called the European Court of Justice (now called the Court of Justice of the European Union) that is what has happened recently.
