Bioethical issues posed by patents – and how they are used – over ‘technologies’ related to the form, functioning and modification of the human body: An Urgent Need for Scrutiny
Aisling Mcmahon1, Maynooth University Maynooth 1Maynooth University, Maynooth, Kildare, Ireland
Abstract
A patent is an intellectual property right which allows rightsholders significant control over how others use a patented ‘technology’ for twenty years. Under the international legal framework, patents are available over all fields of technologies, including health-technologies. The human body is not patentable, however, given the nature of contemporary technological developments and of patent law, many ‘technologies’ that relate in significant ways to the form, functioning and modification of our human bodies are patentable. For example, in Europe, patentable ‘technologies’ include: isolated elements which form the human body such as isolated human genes; ‘technologies’ which relate to the functioning of the body such as medicines, and ‘technologies’ that can alter what it means to be human such neuro-technologies or gene-editing technologies.
This article develops a novel five-category taxonomy of patentable ‘technologies’ related to human body and argues that patents over such technologies – and how they are used – can pose significant bioethical implications, including, impacting how we treat, use and modify our bodies. Yet, such bioethical issues are not considered in a routine manner – bar limited exceptions – within patent grant or licensing decision-making. Instead, a patent on an engine part is viewed the same as a patent on a lifesaving-medicine. Accordingly, this paper argues that greater scrutiny is needed over the potential bioethical issues posed by patent rights – and how they can be used – over such technologies by virtue of how these technologies relate to the form, functioning and modification of the body.
Biography
I am a Professor of Law and have published widely in the health law, bioethics and intellectual property fields. I am Principal Investigator on European Research Council funded PatentsInHumans project which examines the bioethical implications posed by patents over technologies related to the body, including medicines, diagnostics, devices.