Patent Law: Commentary on Thambisetty

- Tade Matthias Spranger, Ph. D.
University of Bonn, Institute for Public Law
(Dept. Administrative Law),
Adenauerallee 24-42, 53113 Bonn, Germany
Eubios Journal of Asian and International Bioethics 12 (2002), 109.

In her article on "Understanding Morality as a Ground for Exclusion From Patentability Under European Law" (EJAIB 12 (March 2002), 48-53), Sivaramjani Thambisetty deals with the core problem of ethical impacts on patent law by explaining basic principles of patentability and introducing various approaches to this many-facetted issue. As a result, she denies patent law"s ethical neutrality. Undoubtedly, patent law, especially as far as patents on genes and other naturally occurring substances are concerned, raises ethical questions.

However, it is not patent law's assignment to define the general relationship between law and ethics, a relationship which occupied (and still occupies) countless scholars for centuries. Neither, patent law has to decide what is "wrong" or "right" in view of biotechnological developments. As a consequence, the EC Biotechnology Directive, as well as the European Patent Convention and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights use "morality" and "ordre public" as legal terms but not as ethical conceptions. For that reason I believe that patent law has to be defined as "ethically neutral".

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