Separation of Church and State While Promoting the Progress of Biotechnology and Modern Science: Does Morality Have Its Place in United States Patents?
| Author | Christopher Asakiewicz |
| Pages | 80-98 |
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Separation of Church and State While Promoting the Progress of
Biotechnology and Modern Science: Does Morality Have Its Place in United
States Patents?
Christopher J. Asakiewicz
cj.asakiewicz@gmail.com
Abstract: This artic le rebuts a renewed in terest by scholars in requiring the United States
Patent and Trademark Office, an administrative arm of the government, to practice moral
patenting through revisions in interpretations of either patentable subject matter or u tility
standards. If this adm inistrative office adopts such a practice, however, it will disrupt the purpo se
of the Patents and Copyrights power “to promote the Progress of Science and useful Arts.”
Through an exploration of the decline of frivolous and injurious standard in patent law, all
governmental arms in th e United States are h esitant to bestow such broad discretion on the patent
office. Declines in the applica tion of similar standards in trademarks and copyrights, and with
comparisons to th e international approaches, the United States must not succumb to arbitrary
judgments based on morality when making patent decisions. Market and so cial pressures alone
will keep immoral inventio ns at bay. With a focus on stem cells, genes, cloning and other
inventions that patent life, the patent’s purpose is for the moral instruction of man, regardless of
the moral debates that underlie those ideas. Let society then choose to reward those innovations
that it feels is moral with profits, not have useful, patentable inventions faltered an d sifted off b y
an arbitrary e xaminer at the patenting stage. Strict separation from moral decision-making is the
only way to promote the progress of Modern Science.
1. Introduction
Thomas Jefferson once wrote,
“that ideas s hould freely sp read from one to another over the globe, for the moral and mutual
instruction of man, and the improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire, … incapable of confi nement
or exclusive appropriation.”
1
The Patents and Cop yrights clause of the Constitution sets forth that “Congress sha ll have the Power to promote
the Pro gress of Science and useful Arts, by securing for limited Times to … Inventors the exclusive Right to
their respective … Discoveries.”
2
However, “Con gress shall [also] make no law respecting an establishment of
religion.”
3
This paper rebuts a renewed interest by scholars in requiring the U nited States Patent and Trademark
Office (“USPTO”), the administrative arm of the government, to practice “moral” patenting. If the USP TO
adopts this practice, it will disrupt the purpose of the Patents and Copyrights power “to promote the Pro gress of
Science and useful Arts.”
4
1
Letter from Thomas Jefferson to Isaac McPherson (August 13, 18 13), in Adrian Koch and William P eden, eds., The Life
and Selected Writings of Thomas Jefferson 629-30 (1944) (emphasis added).
2
U.S.
C
ONST
.
art. I, § 8, cl. 8.
3
U.S.
C
ONST
. amend. I (Religion).
4
U.S.
C
ONST
. art. I, § 8, cl. 8.
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Analogous to the principle of separatio n of religion (“Church”) and governme nts or government actors
(“State”) under the Establishment clause, within United States (“US”) patent law there should be remain a stark
divide between moral and patent decision making. Edward Westermark, in T
HE
O
RIGIN AND
D
EVELOPMENT OF
THE
M
ORAL
I
DEAS
, postulated, “[t]he moral r ules which are prevalent in the society to which we belong are
supported by appeals not only to human, but to divine, authority, and to call in question their validity is to rebel
against religion as well as against public opinion.”
5
Westermark conveys that morals, although a social
construct, have roots in the Church, but as he explores the development of morality and moral ideas, he
ultimately concludes: “Custom has proved stronger than law a nd religion combined.”
6
Society o r in
Westermark’s words, Custom, shapes moral decisions and therefor e moral based limits should not be imposed on
technologies at the patenting stage, but rather, society will app ly moral limits through its markets and decide on
its own to further and incentivize technology. The belief that ideas must therefore flow freely for the moral
instruction of humanity through unencumbered patents, not hindered b y subjective interpretations made by
patent e xaminers through secular regulation is the premise of this paper. Patents free from entanglement with
moral ideas rooted in an appeal to the divine will place the o nus on the public to determine which technologies to
innovate in, through markets and local custom and not the USPT O.
Under US Patent Act of 1952 (the “Patent Act”), “a person shall be entitled to a patent unless… ”
7
Some
scholars argue that this state ment requires an express mo rality prohibition because of the lack of adequate
control of immoral inventions through the curr ent tests for patentable subject matter a nd utility.
8
Granting a
patent to immoral subject matter is considered by so me to be an official seal of approval, which some segment of
the public relies.
9
Should the US continue to encourage and widen the search for such i nventions, in particular
the area of biotechnology, for the benefit of science?
10
At least one scholar believes the answer to this question should be no, especially in regards to morally
controversial biotechnology. This leading scholar , Professor Margo Bagley, has coined the phrase “patent first,
ask questions later” to describe the hands off approach of the USPTO.
11
As the first line of defense, Bagley
posits that the USPTO’s role in policing immoral inventions is through narrow interpretations of patentable
subject matter or moral utility.
12
She argues t hat deficiencies in congressional action in the realm of
biotechnology coupled with the repeal of morality ba sed limits on patentab ility, creates a need for t he
resurrection of the moral utility doctrine.
13
This view is shared by many moral scholars including the Nuffield
Council of Bio ethics (“Nuffield”) during a recent round table discussio n focusing on the ethical implications of
patenting the building blocks of life, deox yribonucleic acid, known commonly as DNA. Nuffield specifically
opposes the patenting or gra nting of rights to DNA sequences as a researc h tools and recommends stringent
utility standards to police this field of study.
14
However, these reformationists fail to realize that the USPTO is
5
E
DWARD
W
ESTERMARK
,
T
HE
O
RIGIN AND
D
EVELOPMENT OF THE
M
ORAL
I
DEAS
:
V
OLUME
1 10 (London, MacMillan 1906)
(emphasis added).
6
Id. at 164.
7
35 USC § 102 (emphasis added).
8
See Joanne Yong, Morality and Biotechnology Patent Laws, 3 I
NT
’
L
J.
OF
P
RIVATE
L.
148,
162
(2010) (“Patent law reform
should be done through an ethical dimension. Biotechnology patent laws are in a state of crisis because they are lacking in an
adequate moral underpinning.”).
9
Cancer Research Technology v. Barr Laboratories, Inc., 2010 WL 286639, at 11 (D. Del. 2010) (“because a patent gives a
kind of official imprimatur to the medicine in question on which as a moral matter some members of the public are likely to
rely.”).
10
See Brenner v. Manson, 383 U.S. 519, 532-33 (1966).
11
Margo A. Bagley, Patent First, Ask Questions Later: Morality and Biotechnology in Patent Law, 45
W
M
.
&
M
ARY
L.
R
EV
.
469 (2003).
12
Id. at 474; Mark A. Lemley, Property, Intellectual Property, and Free Rid ing, 83
T
EX
.
L.
R
EV
.
1031, 1073 (2009)
(“Intellectual property is a form of government subsidy.”).
13
Bagley, supra note 11, at 474.
14
The Nullfield Council of Bioethics, The ethics of patenting DNA, xiii (July 2002), available at
http://www.nuffieldbioethics.org/fileLibrary/pdf/theethicsofpatentingdna.pdf.
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