14 December 2013


'Human Dignity and Patents' by Aurora Plomer in C. Geiger (ed) Research Handbook of Human Rights and IP Rights (Edward Elgar, 2014) argues that
In the early 90s, the Open University used to offer a Philosophy course entitled ‘Life and Death’ which paid homage to the rich diversity of moral and religious views on the value of human life. Two decades later metaphysical questions about human dignity, the meaning of life, its beginning and its end, have made their way into patent law and patent tribunals and transnational central courts in Europe. This article argues that this is an unnecessary and unwelcome development to address legitimate public concerns about the adverse impact of patents on access to knowledge and essential medicines. The internalization and transplantation of human dignity & human rights within the formal structure of the patent system carries the risk of cutting across regulatory frameworks on research and the system of constitutional protection of fundamental human rights in democratic societies. The argument falls into four parts. The first part charts the rise of human dignity in international law and European human rights law and the increasing ‘thinning’ of the concept of human dignity into an abstract indeterminate concept in the new wave of bio-rights instruments. The second part draws on recent scholarship on the history of human rights which underscores the political malleability of human rights as a moral utopia. The third part shows how the importation of indeterminate human rights, dignity-based restrictions into European law on biotechnological patents has facilitated the displacement and re-enactment within patent law and the courts of moral and religious disputes which have nothing to do with patents per se. The last part reviews the EPO’s boards ‘dignity’ based decisions against the US SC ruling in Myriad and makes some suggestions as to how best to address legitimate public concerns about the negative impact of patents.
'Patently a Problem? Human Gene Patenting and Its Ethical and Practical Implications' by Stephanie Constand in (2013) 13(1) QUT Law Review 100 notes that
The issue of gene patenting has received renewed interest with the recent decisions of both the Supreme Court of the United States and the Federal Court of Australia in regards to the patentability of isolated genetic material. The latter case, Cancer Voices Australia v Myriad Genetics Inc, upheld the validity of a patent over the isolated BRCA1 gene and highlighted the wider implications of gene patenting within Australia. This article examines the legal issues arising from that judgment with respect to the ‘manner of manufacture’ requirement for patentability. Additionally, it analyses the ethical consequences of gene patenting and the impact of the monopolistic market control that is facilitated by patents upon the delivery of biogenetic healthcare services, industry investment and the dissemination of research results. It will further consider community concerns regarding limitations in access to genetic testing and treatment and will suggest means of redressing such concerns.