The limits of “ordre public” and “morality” for the patentability of human embryonic stem cell inventions

Abstract

Inventions involving human embryonic stem cells (hESC) have unprecedented potential to improve human life through discovery of new drugs and treatment of incurable neurodegenerative diseases, but at the same time, the use of human embryos in research gives rise to contrasting ethical, moral and religious views on the patentability of such inventions. Whether and to what extent patent offices should take these views into account is an open question. The “ordre public” and “morality” clause in patent law may help us find an answer, but neither the legislator nor courts have clarified the meaning of these vague terms. Judicial interpretation has sometimes increased their ambiguity and raised legal uncertainty for the patentability of hESC inventions. This situation may be desirable in some cases, but not in others where the principles of the legal system as a whole come into play. This paper will shed light on the meaning of “ordre public” and “morality” for hESC inventions by examining patent law in the broader legal framework and emphasizing the interconnectedness of national legal systems in a global market as well as the common interest in healthcare innovations.