Human dignity and patents

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.