Why We (Legally) Can't Have Nice Things: A Dive Into The World Of Patents

Alexandra Ghany

“Patent pending”, or “patent protected”. We’ve all heard these phrases before whether it was in real life, a TV show, or movie, and it’s usually preceded by an invention of some kind. Of course, everyone knows inventions are protected by patents. But what does that mean? Is there a limit? 

 

Firstly, patents don’t just cover invented products, they also protect processes as well, and these products or processes have to be new and offer a new technical solution to a problem.[1] But what’s the Achilles heel? Well, the exclusions to subject matter can vary by jurisdiction, nevertheless, locally, you cannot apply to get a patent for a discovery, scientific theory, mathematical method, surgical methods, etc.[2] Moreover, a patent will not be granted where commercial exploitation of the subject matter would be contrary to public order or morality.[3] It’s funny, our Patents Act[4] has an extensive closed list of excluded subject matter, but in the very next provision, it leaves the door open for authorities to exclude anything that would be contrary to public morals, which in itself is already a vague concept. Moreover, if a person makes a revolutionary discovery or invents a groundbreaking surgical method, do they not deserve to have a legal right to that? Thus, is this legislation an abuse of authority? Our answers are found in the story of a sheep named Dolly.

 

A couple years back, you might have seen a story floating on Facebook or Twitter that scientists cloned a sheep. You never clicked on the article because it must’ve been clickbait, you thought. There’s no way modern science had advanced that far! But the truth is stranger than fiction, because a sheep was in fact, successfully cloned.[5] The clone was named Dolly, and believe it or not, Dolly was announced all the way back in 1997.[6] Dolly opened up a world of possibilities, as scientists at the Roslyn Institute (where Dolly was created) had definitively proven that specialized cells could be duplicated to create an exact copy of the animal they came from. This obviously had an enormous impact on biology and medicine, including the development of personalized stem cells known as iPS cells.[7] Shortly after, this sparked a wide debate on the ethics and morality of human cloning, which was now possible.[8] In fact, in 2005, the United Nations released a declaration calling upon its Member States to prohibit all forms of human cloning. 

In Brüstle v Greenpeace[9], a case arising out of the Court of Justice of the European Union, a neuropathologist attempted to file a patent for the process of producing isolated and purified neural precursor cells from embryonic stem cells. In short, it was a process to produce entirely new cells from the cells of a human embryo to help treat neurological diseases.

 

In this case, the Convention on the Grant of European Patents (CGEP) prohibited the granting of patents to inventions for which the commercial exploitation would be contrary to public morals. This prohibition was not unlike the one found in the Trinbagonian Patents Act. However the key legislation in this case was an EU Directive on patents,[10] which contained an identical prohibition, but went on to expound a non-exhaustive list of what exactly offended public morals. This list included the use of human embryos for industrial or commercial purposes.[11] In this instance, the cells of a human embryo were being used,  not the entire embryo, but the Court understood the ‘human embryo’ in the wide sense and thus the provision was applicable. Although stem cell technologies are typically capable of being patented, the fact that human embryos are capable of developing into a human being meant that this offended the public morals criteria, and thus was excluded from patentability.

 

All this to say, patents are typically regarded as instruments of innovation, as they encourage inventors with the ability to hold legal rights over their own inventions. However, at times, the excluded subject matter actually hinders innovation, though not arbitrarily or unreasonably. In the aforementioned case for example, the objective is noble, as it could have treated neural defects. However this would have opened up the threshold of granting patents where human embryos could be used. Though in theory it sounds harmless, keep in mind that the reason it is prohibited is because it can develop into a human being. Put into the context of Dolly the sheep, it’s not hard to see the slippery slope humanity can fall into. Gene editing is already possible,[12] in an ever-so-divided-world where classism, racism, and sexism continues to pervade almost every society, does anyone really want to open the proverbial Pandora’s box that contains designer babies and endless oppression? It’s often said that innovation is inevitable, but I challenge that. Though innovation is inarguably a force to be reckoned with, the shield that humanity raises to this force is patent excludability. 

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[1] WIPO, ‘Patents’ (World Intellectual Property Office) <https://www.wipo.int/patents/en/> accessed 3 January 2022.

[2] Patents Act 1996 (TT) s 12(1).

[3] Patents Act 1996 (TT) s 12(2).

[4] Patents Act 1996 (TT).

[5] The Roslyn Institute ‘The Life of Dolly’ (Dolly 20 Years) <https://dolly.roslin.ed.ac.uk/facts/the-life-of-dolly/index.html> accessed 11 January 2022.

[6] ibid.

[7] ibid.

[8] Williams, Blanche A.; Cavico, Frank J.; Mujtaba, Bahaudin G. (2011) : Integrating modern business values and cloning: The legality, morality, and social responsibility of somatic cell nuclear transfer, Advances in Management & Applied Economics, International Scientific Press, Vol. 1, Iss. 1, pp. 53-92.

[9] Brüstle v Greenpeace [2011] CJEU C-34/10.

[10] Council Directive 98/44/EC on the legal protection of biotechnological inventions [1998] OJ L 213/13.

[11] Council Directive 98/44/EC on the legal protection of biotechnological inventions [1998] OJ L 213/13 Article 6(2)(c).

[12] David Cyranoski, ‘CRISPR gene-editing tested in a person for the first time’ (15 November 2016) Nature 539, 479.