The room for ethical considerations in patent law applied to biotechnology

Journal of World Intellectual Property, Vol 20, Nos 5-6, 2017, pp. 160-177.

Since the advent of the so-called "patents on life" debate there have been frequent calls for patent policy to take into account ethical concerns over and above the ethically relevant justifications for issuing patents generally. The degree to which the patent system is respondent to including these ethical concerns varies. Ethical arguments frequently encounter attitudes within the patent system that ethics has little to do with patenting and that ethical issues concerning biotechnology must be regulated in other areas of society than in IPR law and practice. In this article, we explore the room for ethical considerations in patent law-making, and show that there is limited ability or will to use this room in practice. We explore global, European and Norwegian institutions and illustrate our point by looking at law-making, administrative, and judicial practices (courts/boards of appeal). We particularly assess the success of the "countermeasures" to undesired ethical effects of accepting the EU Biotech Directive implemented by the Norwegian government in 2003/4. We end the article by pointing to some key tensions between the law-making and executive level in the patent system when it comes to ethical considerations.