Inventor's Moral Right and the Morality of Patents

Abstract

Do inventors have moral rights and does morality matter in patent law? Whilst morality provides a normative justification for property as a right having an erga omnes effect, moral rights of the property owner does not exist a priori. In contrast as property right imposes a duty of abstention, morality may justify such duty. As a specie of property right, intellectual property necessarily includes a dimension of morality implied as restriction. Moreover, as intellectual property includes inalienable, personal mental inputs of the creator and inventors into the abstract objects, moral interests of the creators and inventor also justifies the exclusive right. Despite the foundational significance, the moral interests of an inventor based on patent law is scarcely debated. In contrast to perennial discussion on the morality’s restriction of the patent grants and exercise of patent rights, the perception of patent as a moral right is not widely accepted, nor the expression, ‘moral right’ is found in positive patent law. The absence of academic discussion of moral right for inventors begs the question if morality means and should mean different value in patents than copyright, and if indeed there is no ‘moral interests’ that are protected or should be protected for inventors. The chapter aims to answer this by first conceptualizing morality generally in patent law, and then identify areas where it may be expressed as a right in the European Patent Convention (EPC). Finally, the paper explores one concrete aspect in the positive patent law where the moral interest of an inventor is indeed protected. Using the controversial decision on Broad Institute’s European patent application based on gene-editing invention, CRIPSR, as a case study, this paper illustrates how moral right of an inventor exists and how it may be used as a positive right, which may control the use of the invention, although limited in its scope. As the current right is limited in scope, a cautious normative claim calling for extending a moral right based defence to the inventor is made, as it would imbue fairness into the discussion patent law and ameliorate individual inventor’s position in an increasingly corporate owner-centric patent system.