The morality provisions in the ''European'' patent system for biotechnological interventions: an institutional examination
McMahon, Aisling Maura
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This thesis analyses the supra-national application of the morality provisions in the ‘European’ patent system by the judicial/quasi-judicial decision-making in the European Union (“EU”) and European Patent Organisation (“EPOrg”). In doing so, it focuses specifically on Article 53 of the European Patent Convention and Article 6 of Directive 98/44/EC on the legal protection of biotechnological inventions, with particular reference to the overlapping institutional matrix within which these legislative provisions are applied. The intended contribution of this research is in relation to how these decision-making entities of the EPOrg and the EU interpret and apply the morality provisions in the ‘European’ patent system as a feature of their operation as institutions. The research investigates specifically: to what extent and in what ways does an analysis of the institutional framework for the application of the morality provisions by the various institutions implicated in the ‘European’ patent system reveal new insights into the current position and suggest defensible approaches to the future development of these provisions. This has particular relevance in the current context, in light of the developing unitary patent scheme examined through an institutional lens in chapter six. Importantly, the contribution of this research will not be in relation to the specific principles or tests which should be used in applying the morality provisions per se in the ‘European’ patent system, nor does it seek to contribute specifically to the normative questions in relation to what morality should mean in this context or whether the morality provisions should exist within the patent system. Such matters have been explored extensively in the literature. Instead, this thesis uses doctrinal methods to build a theoretical framework by drawing specifically on institutional theories within law and sociology, which are used to devise a novel framework for assessing institutional influences on decision-makers. This framework is then applied to the EPOrg and EU with the aim of demonstrating the differing institutional pulls on each body in their application of the morality provisions, which is used as a single exemplar to achieve this kind of institutional analysis. The overall aim of this research is to contribute to an understanding of decision-making in this specific context by reference to understandings of how institutional contexts can have profound effects upon the end outcomes of decision-making. This reveals a hitherto un-exposed perspective not only on what is happening within patent law with respect to the morality provisions, but also novel insights that may help to explain the legal landscape that has emerged, and which can inform its future development.