Few legal spheres are as complicated as the field of intellectual property is. The absence of a physical proof of invention allows for different interpretations of the manner of formation of new ideas. Not only is it challenging to prove that a certain invention belongs to a particular person, but it is also possible to dispute one’s creativity and blame them for taking the credit for themselves. The fact that intellectual property is recognized in legal systems around the world causes people to question the value of morality in laws regulating intellectual products. Understanding what constitutes the essence of morality is essential in ascertaining its place in patent law.
Definition of Morality
Defining morality is a complicated task because it is a highly subjective phenomenon, which is explained differently in every region. Even Universal Declaration of Human Rights does not ascertain what morality is, even though it uses this term when describing the right to protect one’s intellectual creations. Specifically, it states that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”1. As a result, morality is a vague concept that should be followed and respected, without being clearly identified.
Another layer of complexity is created by the difference between invention and the recognition of someone’s role in it. Patents enable people to provide permission to others to use their inventions. Therefore, the use of morality in patent decision-making prevents illegal use of inventions by specifically accentuating who can use a certain invention. However, there are inventions that are actually harmful to society, as may be the case with weapons. In this regard, morality dictates that such inventions should not be created. The resulting confusion obfuscates the role of patents and how they should be used to benefit society.
As is the case with morality, there is no single accepted definition of a patent worldwide. Nevertheless, there are some common requirements that are used by legal systems. As O’Sullivan writes, “inventions must be new, involve an inventive step and be capable of industrial application” 2. The novelty requirement implies the absence of an invention in the public availability. The invention criterion means that the new idea should be useful and not be already evident. Finally, the invention has to be applicable in an industry, thus benefiting society.
The most effective way to conceptualize how patents are presented in legal frameworks is to imagine a negative right. Most rights provide an opportunity, which means that people can choose whether and how to exercise them. For instance, the right to vote is an action that a citizen can choose to perform. At the same time, negative rights do not provide any abilities as they protect people from the negative influence of illegal activities. For example, the right to life is supposed to prevent people from being deprived of life. In the same way, a patent provides protection from illegal appropriation of one’s invention by third parties.
The Case for Ignoring Morality
The idea of devaluing moral norms in patent adjudications stems from the elusive nature of morality. Despite the existence of universal human rights, the world is extremely diverse. There are many contentious points in science, society, and industry, the outlook on which changes depending on location. Inventions that benefit one group of people may be seen as morally reprehensible by other people. The most evident example is biotechnology, the development of which has the capacity to alter human genetics3. Not only is there no international consensus on the morality of such advancements, but there is also on agreement between scientists on whether it should be studied. From this perspective, adding the moral dimension to patent law would be hindering scientific progress.
An important aspect of moral norms around the world is their flexibility. Even though universal values, such as the right to live and the right to freedom have been recognized for centuries in some form or another, other values are not as consistent. Public viewpoints on such issues as abortion and gun control can change over the course of several years. Therefore, considering a certain set of moral norms accepted at some period in the past is not plausible in the long-term perspective. Furthermore, predicting the development of technology in the future is also difficult. These nuances lay the foundation for a common viewpoint that considerations of morality in patent laws should be ignored.
The Case for Accepting Morality
The belief that patent law should also be regulated by moral norms is largely based on the assumption that moral principles guide every sphere of life. One of the requirements for patents is usefulness for society. It is supposed to prevent a patentee from disproportionately benefiting from the invention to the detriment of other people. For example, people driven by the desire to maximize profits might take advantage of the invention while patent status ensures that no one else can utilize it. The inclusion of the benefit to society requirement is a moral way to prevent the worsening of social inequality.
Another reason for the use of moral guidance in patent regulation lies in the advancement of controversial biotechnology. It should be noted that the discussion of the morality of patent is relatively new. The idea of intellectual property is centuries years old, but most inventions did not invite ethical debates as they do now4. One of the explanations for such a shift is that the development of technology allows scientists to affect the human body in a previously unseen manner. The subsequent dilemma of technology’s influence on the nature of humanity causes ethical concerns, which can be resolved with involvement of morality in patent decision-making.
Altogether, patent law regulates a sphere of human relations, which is characterized by extreme moral ambiguity. On the one hand, intellectual property should be regulated by moral norms because modern inventions are controversial and may lead to deepening social inequality. On the other hand, there is no unified morality that would dictate ethical decision-making at each point of technological development, thus creating obstacles to scientific progress. As a result, morality indeed has no place in patient law, since it is not directly outlined. Yet, moral considerations are definitely taken into account during actual decision-making, which includes the introduction of new laws and patent regulation.
Crockett, Julien. ‘Morality: An Important Consideration at the Patent Office’ (2020) 108 California Law Review 267.
O’Sullivan M, Biotechnology, Patents and Morality – A Deliberative and Participatory Paradigm for Reform (Routledge 2020).
Patrick, Shannon M. ‘Can We Learn to Incentivize Morality?: A Discussion of Biotechnology on an International Level’ (2019) 34 Emory International Law Review 859.
UNGA Universal Declaration of Human Rights (10 December 1948).
- UNGA Universal Declaration of Human Rights (10 December 1948).
- Maureen O’Sullivan, Biotechnology, Patents and Morality – A Deliberative and Participatory Paradigm for Reform (Routledge 2020) 8.
- Julien Crockett, ‘Morality: An Important Consideration at the Patent Office’ (2020) 108 California Law Review 267.
- Shannon M Patrick, ‘Can We Learn to Incentivize Morality?: A Discussion of Biotechnology on an International Level’ (2019) 34 Emory International Law Review 859.