It’s Perfectly Fine To Patent Inventions Obtained By Immoral Means Says European Patent Office
Despite widespread beliefs to the contrary, patents are not a measure of innovation, nor are they needed for companies to thrive — something even Elon Musk understands. But one aspect of patents that is rarely considered is their morality. The European Patent Office’s Board of Appeal wrestled with this issue in an interesting case involving the plant extract simalikalactone E and its use to treat malaria. As the patent admits: “simalikalactone E (SkE) was isolated from Quassia amara (Simaroubaceae), a medicinal plant widely used in the Amazon for the treatment of malaria.” In other words, the use of the plant extract to treat malaria was already known among Amazonian peoples, who naturally did not try to patent it. Related to this, an objection was raised to the patent, on the grounds that it was contrary to “morality”, as defined by Article 53 of the European Patent Convention:
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;
The IPKat has a good explanation of the reasoning behind the objection:
the Opponent argued that the invention represented “biopiracy” on behalf of the patentee against the indigenous people involved in the original research. Specifically, the Opponent submitted that the interactions with the indigenous communities had been conducted in an immoral fashion, involving deception and an abuse of trust. According to the Opponent, the members of the communities involved had not been fully and transparently informed of the nature of the research project, its objectives, the filing of the patent, and other risks and benefits of the project to community members and their knowledge. As such, the Opponent argued, the IP rights of the communities over their traditional knowledge had been violated. The Opponent submitted that the deception and breach of trust displayed was contrary to ordre public and would jeopardize relations between indigenous and local communities and researchers.
However, the EPO’s Board of Appeal rejected this argument for an interesting reason:
The exclusion to patentability provided for in Article 53(a) EPC requires the stated offense to morality to reside in the “commercial exploitation” of the claimed invention. The claims of the patent were directed to the formula of the antimalarial, a process of manufacturing the antimalarial and its use in therapy. Given the dire need for effective antimalarial medication, the Board of Appeal found that the commercial exploitation of these inventions would not be contrary to public morality (on the contrary, they would be beneficial to society). Specifically, the Board of Appeal made a clear distinction between the morality of the commercial exploitation of an invention, and the morality of how the invention itself occurred (r.2.14).
That is, patents can be excluded if their commercial exploitation would be immoral, but it doesn’t matter if the way the invention claimed in the patent was made turned out to be immoral. European patent law simply doesn’t care about that aspect. Fortunately, that’s not the end of this particular story, as the IPKat post explains:
Questions over the morality of scientific discovery must therefore be dealt with in a different forum than the patent office. In this case, despite the decision of the Board of Appeal, the European patent in question appears to have lapsed on all member states due to failure to pay renewal fees. The US case has similarly been abandoned. It thus appears that the substantial political pressures on the [patent-holder, the French Institute for Development Research] outside the patent system have impacted their desire and/or ability to commercialise the invention.
It’s good that this kind of pressure works, but it would be better if the patent world cared more about the morality of inventors’ actions in the first place.