Between Scylla and Charybdis: Patentability and Morality Related to Human Embryonic Stem Cells

The patentability of inventions related to Human Embryonic Stem Cells (HESC) is challenged by the morality provision of various nations’ regulations. 1 This Article discusses whether it is a matter of expediency to prohibit granting patents to HESC-related inventions based on moralitybased provisions, and it concludes that this is not appropriate. To claim this, the Article explores typical cases and regulations in the European Union, United States, and China. However, different areas adopt various approaches in dealing with this extremely complex issue. This comparison sheds light on the inappropriate combination of morality and patentability in the EU and China. The comparison of these areas also demonstrates infusing patent law with morality is both inefficient and ineffective as morality is not a criterion that patent authorities should consider. * Li Jiang holds a Ph.D. from Bangor University Law School, a LL. M from Shandong University, and a B.S. in Biotechnology from University of Science and Technology Beijing, The author would like to thank Dr Shi Wei for his invaluable input, as well as the staff of the Intellectual Property Brief for their tremendous work and care, without which this publication would not be possible. 1. See Article 53(a) of European Patent Convention (stating that “European patents shall not be granted in respect of inventions the commercial exploitation of which would be contrary to ‘ordre public’ or morality; 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”); see also Article 5 of Patent Law of the People’s Republic of China (stating that patent rights shall not be granted for invention-creations that violate the law or social ethics or harm public interests); Article 32 of Korean Patent Law (stating that inventions liable to contravene the public order or morality or cause injury to the public health shall not be patentable). JIANG_ FINAL (1) (DO NOT DELETE) 1/29/2015 1:25 PM 54 AMERICAN UNIV. INTELLECTUAL PROPERTY BRIEF Vol. 6:1 Additionally, in terms of funds invested into research, the reward of a patent seems to have been overvalued. This Article argues that it is better to establish the specific authority to monitor HESC research instead of infusing morality with patentability. A patent system without a moral clause would be beneficial to move HESC research forward.