Book Review: Biotechnological Inventions - Moral Restraints and Patent Law

Biotechnological Inventions: Moral Restraints and Patent Law

By Dr Oliver Mills

Published by Ashgate

ISBN-10: 0754677745, ISBN-13: 978-0754677741

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Last month the European Parliament adopted a resolution calling for plants bred by natural means to be unpatentable. An amendment tagged onto the resolution also called on the parliament to welcome two court decisions involving embryonic stem cells. It might seem odd that embryos found their way into a debate about broccoli and tomatoes, but this is just the latest symptom of Article 53, a piece of legislation that puts morality at the heart of patent law.

By exploring the legislative history and case law of patents both in Europe and the US, Oliver Mills asks why morality has become such a pervasive issue and whether European law in its current state is fit for purpose.

Patent law exists to encourage innovation. It gives the inventor a monopoly on their product for a given period, but at the same time demands that the new technology be disclosed so that others can learn from the advance and innovate themselves. It seems then that the moral considerations built into patent laws - most strikingly relevant to biotechnology - are out of place.

Biotechnology is an increasingly influential feature of modern life. But it is developing faster than politicians can legislate and raising public concern at the same time. Mills, who maintains a resolutely pro-business stance throughout this book, believes what's needed from law is certainty and clarity. He contends that patents were never meant to be a form of moral regulation and are ill-suited to this purpose.

The historical perspectives here are particularly insightful. The modern concept of a patent in England dates back to the 1624 Statute of Monopolies and most other industrialised countries had their own form. But Mills suggests that it was in the early days of European integration and the desire to promote free trade where things really went wrong.

Legislation to harmonise patent laws across Europe in the 1960s and 70s did not at first consider morality; exclusions were only added in final drafts to protect governments from having to publish 'immoral' material through the patenting process.

One very reasonable conclusion in the book is that these exclusions were never intended to be used as they are today, where the broad language is open to over-interpretation. Further problems arise from the lack of a common concept of morality across Member States. It's also true that the complexity and unique problems arising from biotechnology could never have been predicted.

These legal artifacts, Mills argues, restrict European competitiveness in the global technology market. Where badly drafted European conventions and directives create confusion, the constitutional basis of US law means that courts are able to provide flexible but relatively consistent guidance on patentability. Moreover, the absence of moral considerations in the US system makes it the much more desirable option in the author's view.

Beyond arguing for the removal of morality clauses from the law, Mills also calls for special considerations to be introduced to cope with the unique needs of biotechnology, such as greater rewards for effort rather than serendipitous discovery and greater literacy in the art of biotech in patent offices and the judiciary.

In the end it's hard to disagree with the main thesis of the book - that patent laws are a poor way to regulate biotechnology. But for some, Mills' pro-biotech viewpoint may go too far; his interpretation of some court rulings on traditional substantive patent law and their implications could appear narrow and short-sighted.

This is an academic book, there's no getting away from it. Without a modest understanding of patent law, Mills' examination of its implementation and ramifications can sometimes require a couple of re-reads to understand.

The book contains an abundance of examples from case law and a useful directory of relevant legislation as well as an extensive bibliography. And for those more interested in broccoli and tomatoes than stem cells there's a whole chapter on the protection of plants.

Unfortunately, 'Biotechnological Inventions' was published before the recent Brüstle v Greenpeace ruling by the European Court of Justice and so is already lacking a major - and possibly influential - piece of case law.

Readers pondering whether it is morally right or wrong to patent gene sequences or whether society should allow technologies that require the prior destruction of embryos will be disappointed — this is primarily a book about the law and its contradictions, not a philosophical examination of morality. Nonetheless, if you can provide the philosophy, this book can provide some solid facts.

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