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This chapter advances the argument that religious and ethical reasoning have a role to play in policy debates about patent law, and also in some patent law cases. We begin at the most general level, by arguing that in democratic, pluralist societies, moral and religious argument have a legitimate contribution to make to public discourse tout court. We then make a case for the relevance of religious and moral deliberation for patent law in particular, given that inventions and new technologies that seek patent protection sometimes have significant repercussions for wider society, and patent protection is a way of encouraging and supporting their development. We also consider ways in which religion and ethics might be said to count as relevant evidence not only in patent policy debates, but also in patent proceedings. We address this against the background of the ‘politics of knowledge’ that has arisen in Europe and the United States, and include reference to the explicit immorality exclusion found in European patent legal systems. Given that the interpretation and application of the immorality exclusion has been controversial with lawyers, we finally propose an alternative, potentially more fruitful approach to the exclusion, treating it as a ‘policy lever’.
Despite the remarkable ability of medical science to treat, cure and prevent human suffering, the reality is that relatively few people benefit from this knowledge. The principal reason is poverty, or more accurately the unequal distribution of wealth. While the rich have more than enough to afford complex new treatments for cancer, heart disease, diabetes and infertility (amongst many other disorders), the poor struggle to afford even the most basic healthcare services. And while the diseases of the rich present lucrative new markets for medical research, the diseases of the poor are largely invisible to profit-oriented scientists, so few drugs are available. These two problems have been dubbed the crises of access and innovation.
The patent system, although significant for the economic sustainability of medical science, has exacerbated these problems. The strongest justification for the patent system is utilitarian. The argument is that in return for investing in the risky business of developing an invention and disclosing it to the public, the inventor is given up to twenty years of exclusivity during which they have the sole power within the jurisdiction of the patent to exploit the invention, or to license others to do so. This is the foundation for a very flexible business model, wherein the patent owner can decide how they market their invention, whether and how they will invest in additional work needed to ready it for commercial use, whether they will keep the invention for their own sole use or allow other parties to use it and, if the latter, the price they will charge.