Balancing Innovation, ‘Ordre Public’ and Morality in Human Germline Editing: A Call for More Nuanced Approaches in Patent Law

What is it about?

This article analyses the role that ‘ordre public’ and morality exceptions in patent law can play in the granting of patents on inventions in the field of human germline editing, and the consequences of this policy option. The article argues that we need to pursue more nuanced approaches to the application of ‘ordre public’ and morality exceptions in patent law in order to allow for a case-by-case application. The article argues that the assessment of risks and benefits of patent exceptions need to be research-based, taking into account inputs from all relevant stakeholders as well as those engaged directly in patent and innovation law and policy. While recent social science landscaping studies are welcome, we believe that a more comprehensive comparative legal analysis is required. Such an approach should take into account the complexities of patent law and procedure in order to better inform the policy debate. In addition to identifying which countries currently have ‘ordre public’ and morality exceptions, there is also a need to examine in more detail how the law is applied in practice when it is subject to decisions by patent offices and by the courts. The application of the exception should be based on a sound understanding of both the underlying science as well as the broader ethical, social, and legal implications, thus enabling case-by-case decisions that provide the basis for patent claim amendments and nuanced purpose-bound protection.

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