Is the Patents Act the Best Mechanism for Addressing Concerns?
It is necessary also to consider whether the Patents Act is the best mechanism for addressing the concerns identified. It can be argued that patent law is not an effective way of controlling the use and development of inventions. In effect, individuals would not be prevented from using or exploiting such inventions, they would simply be unable to patent them. The following arguments can be made against excluding biotechnological inventions from patentability:
- There is the possibility that refusing patentability may in fact encourage unethical behaviour in some situations. Where they cannot secure patent protection, some researchers may see an incentive to keep technology secret in order to ensure their own commercial interests regarding exploitation of inventions. This could potentially result in secretly conducted biotechnological research not being subject to regulation by ethical bodies.
- The application of discretionary exclusions (such as the present 'exclusion for inventions which are contrary to morality' discussed above), requires the Commissioner of Patents to consider these questions when determining whether or not to grant a patent. This raises the question of the appropriateness of requiring the Commissioner of Patents to determine ethical questions and whether such questions are outside the scope of this position.
These arguments suggest that it is preferable to control inventions through laws that control their use and/or development, rather than in the context of intellectual property rights legislation.
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