Abortions and Intellectual Property

Dr Emma Perot

The world has been reeling from the overturning of the US constitutional right to abortion recognised in Roe v Wade[1] in the US Supreme Court. This is despite the fact that the impact of the judgment is seemingly limited to the USA. Some US states have federal rights to abortion, which still protect women to a greater extent than most of the Caribbean region. Our stricter approaches to abortion mean that the practice is generally illegal or only legal in exceptional circumstances to preserve the life or mental health of the mother.

How is IP relevant to abortion where debate is usually confined to human rights discourse? Intellectual property is not immunised from the moral quandaries of legislators. In particular, patent legislation across the globe often has a provision which prohibits the patenting of inventions that could be considered immoral or contrary to public conscience. In Trinidad and Tobago, section 12 of the Patent Act covers exclusion from patentability: ‘A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public order or morality, or which is prejudicial to human, animal or plant life or health, or to the environment, provided that such refusal is not based solely on the ground that the commercial exploitation is prohibited by a law in force in Trinidad and Tobago.’ Similarly, section 53(a) of the European Patent Convention prohibits the grant of patents ‘of which would be contrary to “ordre public” or morality.’

The United States also has limitations on patentability. The moral utility doctrine[2] was previously used by courts to temper the types of inventions that were permissible. While this doctrine was struck down in the case of Juicy Whip,[3] the United States Patent and Trade Mark Office under the Patent FAQs lists ‘inventions which are offensive to public morality’ under ‘what cannot be patented’.[4] Swanson conducted a patent search for patents relating to abortion pre Roe and found that in the United States, the ‘patent office issued virtually no patents on inventions specifically described as related to intentional pregnancy termination.’[5] Unlike the EU approach which sets out various tests, albeit tests that have been criticised, the US approach which does not have an explicit morality provision does not provide guidance to patent examiners and judges. [6]

The deeply intertwining of the US political and legal system makes it precarious to leave the morality of patents in the hands of examiners and judges who may impose their own beliefs to the detriment of scientific progress. However, the illegality of abortion does not necessarily mean that no abortion related inventions can be registered. Yet, clamping down on abortion in the US, where technological developments relating to abortion occur, poses a barrier to research which seeks to make the process safer for women. If patents can be granted, but products cannot be legally used, there is little incentive to continue research as inventors will not benefit from one of the key elements of the patent system – the ability to recoup investment. The knock on effect is that foetal cell research, which has led to the development of vaccines, and is currently being used for Parkinson’s and autism research, can potentially be disrupted. [7]

Even if patents relating to abortion continue to be granted in the US, the political atmosphere can lead to the withholding of inventions. In 1982, French pharmaceutical company, Roussel-Uclaf, created a drug that could induce abortion without surgery up to 8 weeks after conception. Despite being granted a patent in the US, the company denied access to the drug due to political tensions surrounding the abortion debate post-Roe. As a result, American women who now had a constitutionally protected right to abortion could not access this new drug.[8]

How does all of this affect us in the Caribbean where most of us do not have a right to bodily autonomy, despite the prevalence of gender based violence, rape, and absence of sex education? Firstly, this new change deters research from being conducted in the US into making abortions safer and more effective. This means that if we ever obtain the right to abortions, we will not have the advantage of research and development that will inevitably be stymied due to the overruling of Roe. Secondly, since our courts tend to look outside of the region to determine how to treat with the development of law, any patent cases which may arise based on morality can have an impact. As such, the decision in Roe, which immediately impacts American woman, will have a trickle-down effect on the Caribbean approach to morality in patent law generally. 

 

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[1] Roe v Wade (1973) 410 US 113. 

[2] Lowell v Lewis (1817) 15 F Cas 1018, Bedford v Hunt (1817) 3 F Cas 37.

[3] Juicy Whip v Orange Bang (Fed Cir 1999) 185 F 3d 1364. 

[4] US Patent and Trade Mark Office, Patent FAQS < https://www.uspto.gov/help/patent-help#type-browse-faqs_1902> accessed June 28 2022; Julien Crockett, 'Morality: An Important Consideration at the Patent Office' (2020) 108 Calif L Rev 267, 275 – 278.

[5] K Swanson, ‘Patents, Politics and Abortion’ Northeastern University School of Law Research Paper No. 161-2013, Available at SSRN: https://ssrn.com/abstract=2337062 accessed June 28 2022.

[6] K Lindell, ‘Immorality and patents: The exclusion of inventions contrary to ordre public and morality’, in  A Level (ed) New Frontiers in the Philosophy of Intellectual Property (Cambridge University Press, 2012).

[7] US National Library of Medicine, ‘Setting the Stage: Fetal Research, Fetal Tissue Research, and Historical Timeline of Regulation and Legislation’ < https://www.ncbi.nlm.nih.gov/books/NBK231997/> accessed June 28 2022.

[8] S Allen, ‘Patents Fettering Reproductive Rights’ (2012) 87(1) Indiana Law Journal 445, 456 – 458.