INTRODUCTION
The patent right is a political right to secure economic means by getting all rights reserved
over the invention made by an individual or organization. The Patent right is meant to reserve
all the rights of an individual over the sale, production, Import, Export, etc. the idea of
providing patent right is to reserve the economic rights of the inventor to promote the inventions
around the globe and the sharing of ideas would aid in the advancement to the world and
would result in more such inventions. Patent right establishes the monopoly right of the
inventor over the invention. The right is specifically reserved for the Biotechnology, which is
growing with exponential growth in the 21st century.
The ongoing debate is on the exclusion of morality and public order in the patent rights. The
definition of morality can be understood as per the municipal law of the nation that is not
defined in international laws. few nations have included the morals as the restriction on the
patent rights but few have indirectly incorporated the idea on the name of the utility of the
patent. It is accepted that the idea of patent right over the living organism is morally wrong
and no such right should be accepted by the authorities. The Biotechnological inventions are
an essential part of this 21st century, the recent example being the outbreak of Corona Virus1
and the world is desperately waiting for the vaccine to heal the Virus and make the life
normal. The invention of the vaccine would be subject to patent rights.
The morality in the patent rights allows the rights over inventions, which implies that things
that are naturally existing and not made by man cannot be made patent as they belong to
nature for everyone, one cannot claim the right over that. Inventions can be made patent as
they include the scientific research and knowledge to invent something that does not exist
naturally, such rights shall be granted to the inventors. The debate on the exclusion based on
morality in the patent laws at the International level has its implication in the TRIPS
agreement and various agreements and convention hat shall be discussed further in the
paper.
The Patent rights in India3 are granted on majorly three conditions firstly, the invention must
be original and unique, secondly, that must be an additional knowledge to the already existing
things and lastly, that invention must be for the industrial use and must the aid the growth.
Patent rights in India can be claimed by the India Citizen as well as the foreigner. The patent
rights are governed by the domestic laws and to get something patent to ease of doing
business the foreigner can also get the rights reserved following the Paris Convention. Indian
Laws incorporates morality as the ground of restricting the patent rights and Indian laws are
explicit about it.
POSITIVES AND NATURAL SCHOOL OF LAW
The two major schools of Law are distinguished based on the inclusion of public order and
morality in the law. On the one hand. The positivist school of law favours the idea of
exclusion of public order and morality from Law. Whereas, the Natural School of Law
supports the inclusion of public order and morality in law as they believe the law is made of
the society of humans which must incorporate the basis of humanity i.e. public order and
morality. The Law would be incomplete without the inclusion of public order and morality.
Law, purely as the rules of reason and logic cannot work for a human who is made up with
such dynamic emotions and morals. The human without morals becomes self-centric and that
cannot run a society of humans.
The theory of schools concerning patent law under Intellectual Property Rights is different
from each other. The theorist based upon the ideas emphasised by them like Naturalist
favours the idea of inclusion of public order and morality under the patent law and supports
the idea of denying the patent if that invention is offensive to the morals of the society.
Anything offensive to the morality shall not be given the legal position. Whereas the
positivist favours the exclusion of morality under the patent law to motivate the inventions
and scientific research by an easy way of getting the patent right without including the
obligations like public health and morality.
ORIGIN OF PATENT RIGHTS
The first Patent Act of 1790 was introduced in the U.S. in the guidance of Thomas Jefferson4
regarding the monopoly right of the person over his invention. In the era of new inventions
and discoveries, he brought up the concept of the patent right to secure the rights over the
invention or discovery. These rights were important to enhance the discoveries and invention
by sharing ideas with others without losing the due credits. The rights were given under the
U.S. Constitution5 as “to promote the Progress of Science and the useful Arts, by securing,
for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings
and Discoveries.” Further, the act6 was made to preserve the art and inventions of the
individual or a group to promote the invention in the country and to motivate the people
towards new ways of developing in the nation. The board was set to serve the purpose
established named “Commissioners for the Promotion of Useful Arts”7 empowered with the
authority to refuse or grant the patent right after considering the use and importance of the
said discovery or invention.
The Supreme Court of the United States in the case of Diamond v. Chakrabarty8 held that A
live, human-made micro-organism can be made patent as that falls under the “manufacture”
or “Composition of matter” as per the established law. Here, the question was raised
regarding the patent of the bacterium obtained from the Crude oil. The court gave the vide
interpretation in the case and provided the scope of the definition of the said word.
TRADE RELATABLE INTELLECTUAL RIGHTS (TRIPS)
Various International Conventions on the Intellectual Property rights talks about Patent rights
and certain regulations regarding the same. Not all the conventions or agreements explicitly
talk about the Morality and Public Order under the Patent Rights but they establish a
mechanism of getting the patent and resolving the disputes among the contracting States. The
jurisdiction of any of such International treaty lies to the signatory nations that do not extend
to the non-signatory nations which make it volunteer in nature not obligatory. Also, there can
be no sanction over the sovereign State. The treaties for patent are made among nations via
pacts and agreements like European Nations have their own governing rules. The most
acceptable and implacable, signed by most of the nations is TRIPS by WTO.
The World Health Organisation(WTO) established an International Legal Agreement
focusing on the Intellectual Property Rights among the boundaries named “Trade Relatable
Intellectual Rights” (TRIPS) it is governed by WTO 9 and provides the regulations related to
the Intellectual Property Rights copyright, Patent etc. The main objective is to resolve the
disputes raised and promote the discoveries and inventions among all, to make sure that such
scientific development reaches to other with all the rights secured of the person who invested
or discovered it. The agreement includes various Articles to achieve the goal for our study the
most relevant one is Article 27.2, which is explicit about the inclusion of morality and public
order and morality.
The TRIPS in its Article 27.210 states that “Members may exclude from patentability
inventions, the prevention within their territory of the commercial exploitation of which is
necessary to protect order public or morality, including to protect human, animal or plant life
or health or to avoid serious prejudice to the environment, provided that such exclusion is not
made merely because the exploitation is prohibited by their law” The section clearly states
that the public order and morality is the restriction in the patent right. If the invention or
discovery is causing harm to the public order and morality that can be denied patent rights.
Article 27 makes it clear that the Patent protection for pharmaceutical and agricultural
chemical products cannot be provided to anyone.11
Certain terms which are not defined under the agreements need to be read as per the rules and
regulations of the concerned states. The State can make strict laws if the matter relates to the
security of the Nation which related to the integrity and sovereignty of the Nation. Such laws
must be justified and made clear by following the due procedure of the law12 it cannot be
arbitrary and discriminatory. The recent example is the current situation is the outbreak of the
Virus COVID-19, If any country achieves the success in making of the vaccine then the
country is under a moral obligation to provide that vaccine to other nations which are
suffering. The company can get it patent but have to share the formula with other nations.
The definition of “Morality” changes in different countries but health emergency is included
in all of them. All the countries are legally obliged to share the vaccine and medicine
discovered to save the world that cannot be hidden on the name of the sovereignty and
integrity of the Nation. The judicial mind must be applied to all situations like this.
MORALITY AND PUBLIC ORDER UNDER PATENT RIGHTS
We have discussed the origin of the patent rights in the United States, the right has evolved
over some time. The U.S has kept the morality and public order under the exception in their
patent laws. The morality utility doctrine was invoked in the 19th century to check the
biotechnology inventions of the modern world. The U.S. Court may not necessarily use the
term “morality” but maintains a certain level of it to provide morality. The court at various
instances observed the need for morality in-laws and defined the scope and importance to
maintain it. The decision has been made, changed, evolved and becomes part of the laws. The
U.S. Court evaluated the doctrine on the name of utility rather than the morality like in the
case13 held that the patent rights can be given based on utility, the person has to established
the utility of the product to get the patent right over it.
The European Union which follows the European Patent Convention14 in its Article 53(a) of
the European Patent Convention(EPC) 200015 provides that European patents “‘shall not be
granted in respect of inventions the commercial exploitation of which would be contrary to
“order public” or morality’ and that ‘such exploitation shall not be deemed to be so contrary
merely because it is prohibited by law or regulation in some or all of the Contracting States”.
The European Union has its regulations to deal with the patent rights which is equally
incorporated while dealing the matter internationally. The first The European Union dealt
with the exclusions under Article 53(a) of the EPC in the case of Onco-Mouse case16, which
questioned the invention of Mouse for the biological use specifically for the cancer research.
As a decision, the court held that the patent cannot be granted to the natural thing and rat
being an animal variety cannot be made patent. The decision was made after considering
morality into Intellectual property rights. The European Union excludes the patent on the
ground of morality but still incudes certain discoveries under the rights.
China’s Patent Laws are more similar to the European Union than the U.S as it talks about
morality in the patent rights rather than questioning it based on utility. Article 5 of China’s
Patent Law17 states that “Patent rights shall not be granted for invention-creations that
violate the law or social ethics or harm public interests. Patent rights shall not be granted
for inventions that are accomplished by relying on genetic resources which are obtained or
used in violation of the provisions of laws and administrative regulations.” Which makes it
clear that the Nations policy includes the morality concerning the Intellectual Property
Rights. China joined the TRIPS in the year 2001 and became the part of the world’s
community which is based on the morality in the laws. The Chinese interpretation of
Morality is similar to the Plant Genetic Systems case18 and the incorporation of morality in
the law is made very well acceptable and applicable.
PATENT RIGHTS IN INDIA
Patent Rights in India are covered under the Indian Patents Act, 197019 which provides the
provisions related to the morality under the patent law. The act of 1970 is the amended and
improved act from the old act of 1856 in India which was amended several times and the
major amendment took place in the year 1970 hence, the act was replaced. The matters
related to the patent rights in India by the Office of the Controller General of Patents, Design
and Trade Marks (CGPDTM)20 that is empowered with the decisions related to the Patents,
Design and Trade Marks etc. the act provides various provisions related to the Patent for 20
years and maybe extended by the filling the application in the office. The patent rights are
subject to Public Order and Morality.
India is a signatory of the TRIPS by WHO and as the result enacted the Geographically
Indications of Goods (Registration & Protection) Act, 199921 and became effective from the
year 2003 which protects the geographical indication in India. India has registered a few
geographical indications under this act are Darjeeling Tea, Malabar pepper, Kancheepuram
Silk etc. the period of GI indicator is ten years and may get extended time to time. The
Exclusion22 under the GI Act which does not explicitly include Public Order and Morality but
that does include the exclusion on the grounds like the registration of the item shall not create
confusion among the people, shall be lawful, the item shall not be the absence or against any
religious sentiments etc. The prescribed law implied the inclusion of Morality and Public
order into the GI act and the importance of the culture is respected. Public order and morality
are protected.
Inclusion of Morality and Public order is explicitly mentioned in the Indian laws, Section 323
states the things which are not inventions and under its sub-clause (b) it says “ an invention
the primary or intended use or commercial exploitation of which could be contrary to public
order or morality or which causes serious prejudice to human, animal or plant life or health
or to the environment;” which explicitly the inclusion of morality and public order. Indian
values are high in terms morality as it puts the restriction upon the highest right of India i.e.
Fundamental Rights24 the rights are not absolute they are subject to some reasonable
restrictions and morality and public order puts that restriction. The patent rights are not
fundamental but they are legal right given under the statue by the government. The laws are
made for the establishment of the Intellectual Property Appellate Board to resolve the
disputes.
The Indian Judiciary in the case of Novartis AG v. UoI & Ors.25 Evaluated the matter of
patent rights concerning section 3(b) of the Patent act. The court held that the patent right
cannot be granted as the medicine for which the patent is being claimed is made to cure
cancer in the country and patent right will make the company sole authority to decide the use
and price for that product that may be unjustified to the poor of the nations. Also, the health
requirement is the basic need of each human and must not be unaffordable to them. The court
made it very clear that the drug that cures the disease have to be available for all and patent
rights making it unaffordable are falling under the section 3(b) of the act and it is justified to
not grant the patent right of it.
India has witnessed the matter related to the morality and public order at various stages which
include the human embryonic stem cells (HESC), which is a helpful and effective way of
improving the biological growth of the Nation and is helpful to achieve new heights in the
medical science. But the use of human embryonic stem cells in the research is not ethically
and morally correct. The research is questionable under the ground of morality in law. The
morality under patent law coined in the matter of the use of such cells and the court
undertook the interpretation of the morality in different judgements which vary from facts
and circumstances of the class. The Indian Judicial system has evaluated the term “Morality”
for the act. The court evaluates the balance between the innovation in the field of science and
the extent of morality and public order to decide the question of the patent right in any
dispute arise.
The statues in India are living document because of the amendments as per the requirements
to meet the ends of justice. Similarly, the Patent Act was amended several times and the most
recent amendment was implemented in the year 200526 to amend the statue to make the
provision clear about the TRIPS agreement. The question of the constitutional validity of
section 3(d) in the lieu of TRIPS agreement was raised in the case of Novartis AG v Union of
India27, where the court believed that the municipal laws prevail over the international
treaties as the international agreements are not directly binding to the municipal laws.
The amendment of 2002 is another important 28 amendment to understand the incorporation of
morality in the patent laws as the amendment was made to implement the provisions related
to the biotech patentability in India, which was absent in the laws till date and required to be
inserted as the other Nations like the U.K. and U.S.A were using the biotech patent rights in
their country. The amendment made it part of the potentially patentable process in India with
the growing time and need. The amendment came up with the new definition of “Invention”
which includes the method or procedure as a subject to patent rights. The step of inventing
something can be made patent by this amendment.
CONCLUSION
Conclusively, we have observed that morality and Public order plays an important role in the
rights related to Intellectual Property and patent. The right which reserves the monopoly over
its invention of the investor is important to motivate and inspire new inventions in the field to
the industry which help to grow in the modern world. We have witnessed the example of
countries like the U.S., where the patent was denied based on utility. The concept of utility
includes the Moral aspect of the Society but it is not explicit about the inclusion in the law.
Internationally, The TRIPS agreement is an important document about the patent right of the
Intellectual Property, that incorporates the morality and public order as the restriction to the
patent rights, also, it is signed agreed by many nations around the Globe. Indian
laws are explicit about the importance of morals while implicating the laws and included by
the legislature. The judiciary at various instances incorporated the morals and public order
while making a decision that is fair and just. The paper is in favour of the inclusion of Public
order and Morality in the laws related to the Patent Rights and the same is supported by
various arguments.
