Human Embryos, Patents and Global Trade: Assessing the Scope and Contents of the Trips Morality Exception

EMBRYONIC STEM CELL PATENTS: EUROPEAN PATENT LAW AND ETHICS, pp. 343-367, Aurora Plomer and Paul Torremans, eds., Oxford University Press, February 2010

University of Edinburgh School of Law Working Paper No. 27

20 Pages Posted: 22 Aug 2010

See all articles by Gerard Porter

Gerard Porter

University of Edinburgh - School of Law

Date Written: February 1, 2010

Abstract

Can a World Trade Organization (WTO) Member exclude an invention from patentability on the grounds of ordre public or morality whilst at the same time permitting the sale and distribution of the invention within its territory? This is a question raised by recent developments in Europe, where moral restrictions have been placed on the patentability of ‘uses of human embryos’, yet human embryonic stem cell (hESC) research, which involves the destruction of human embryos, is permitted and encouraged within numerous EU Member States, and indeed, also funded through the central EU science budget. This chapter assesses whether such an incoherent regulatory landscape would survive WTO scrutiny. The chapter argues that in general, if a WTO Member has not attempted to ban the commercial exploitation of a certain invention within its borders, measures prohibiting the patenting of that invention on moral grounds would likely be viewed as constituting an unjustified restriction on international trade. More concretely, it is suggested that the WTO Member would be found to be in violation of its obligation under the TRIPS Agreement to make patents available without ‘discrimination’ as to the field of technology.

Keywords: TRIPS Agreement, Patent, Morality, Moral Exception, Human Embryo, International Trade, WTO

Suggested Citation

Porter, Gerard, Human Embryos, Patents and Global Trade: Assessing the Scope and Contents of the Trips Morality Exception (February 1, 2010). EMBRYONIC STEM CELL PATENTS: EUROPEAN PATENT LAW AND ETHICS, pp. 343-367, Aurora Plomer and Paul Torremans, eds., Oxford University Press, February 2010; University of Edinburgh School of Law Working Paper No. 27. Available at SSRN: https://ssrn.com/abstract=1663302 or http://dx.doi.org/10.2139/ssrn.1663302

Gerard Porter (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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