This 2002 opinion by the E.C. Europe Group on Ethic’s addressed larger issues of patents on stem cells, but it’s statements on patents and access to health care have broader implications.
- 2.9. PATENTS AND ACCESS TO HEALTH CARE
The patent creates a control regarding commercial use. This raises questions as to the uses which are covered by the patent. To secure that patent holders do not misuse their rights for example by charging unreasonable fees for the use of their inventions, EGE finds that the recourse to compulsory licence should be encouraged when the access to diagnosis and treatment is blocked by misuse of patent rights. The EGE stresses the fact that it is the responsibility of the states to establish legal procedure for the delivery of compulsory licence and to examine if fair access to health care justifies such a procedure.
[Note the broad application of this statement, which is not limited to particular diseases or health problems. jl].
The Text of the Opinion No 16
ETHICAL ASPECTS OF PATENTING INVENTIONS INVOLVING HUMAN STEM CELLS
Delivered by the European Group on Ethics
In Science and New Technologies
To the European Commission
On 7 May 2002
Reference: Request by the European Commission on 18th October 2000
Rapporteurs: Linda Nielsen and Peter Whittaker
The European Group on Ethics in Science and New Technologies (EGE),
2.1. SCOPE OF THE OPINION
According to the 1998 EU Directive on the Legal Protection of Biotechnological Inventions article 7: « EGE evaluates all ethical aspects of biotechnology ».
The Group has, in its Opinion No. 15 of 14th November 2000 on the ethical implications of human stem cell research and its uses, made recommendations, namely:
- to set up a strict public control by centralised authorities, on human embryo research where it is allowed;
- to take measures to prevent commercialisation of human embryos or cadaveric foetal tissue;
- to ensure the respect of ethical principles through the control of public authorities, concerning import of human stem cells, where allowed.
This present opinion deals with the specific ethical questions related to patenting of inventions involving human stem cells. The Group is aware of the fact that patents also involve many difficult and different questions of an economic and political nature, which may influence the way of dealing with patents, but has seen its task as providing an ethical focus on the question. The rapid development of biotechnology, especially the promise of stem cell research, makes it appropriate to consider and clarify some questions which could not have been taken into account when the 1998 EU Directive was drafted, given the state of the art at that time.
One option would have been to forbid patenting of stem cells or stem cell lines. The consequence of such an option would be the major slowing of this research field (except in case of a very unlikely large public investment), and the EGE opinion is that it would be contrary to public (and especially patients’) interests. Moreover, the Group considers that it would be contrary to the EU choices as expressed by the 1998 EU Directive on patenting. The Group finds that it is crucial to define the conditions required to patent, the limits of the patenting of human stem cells in relation to ethical considerations and the relevant processes securing ethical evaluation.
2.2. THE BASIC ETHICAL DILEMMA
EGE recognises the importance of patents as an incentive to innovation and as a reward to the inventor for openness and publishing the results.
One ethical dilemma arises due to the fact that patents can encourage scientific progress which can be used to the benefit of better health care, and at the same time, patents can also impair access to the health care due to the need of a licence to use them and to the fees that will have to be paid to the patent holder.
It is then necessary to secure the right balance between the inventor’s interests and the society’s interest – in the sense that one task for the community is to secure ethical principles and values in the context of possible conflicting interests of stake-holders, namely: patients and patients’ associations, inventors and other researchers, donors, industry, investors, healthcare providers, and social insurance providers.
In order to be able to specify ethical limitations, a number of problems are to be considered, including:
- content of patents (process or product);
- various sources of stem cells;
- methods used to derive stem cells;
- protection of the donor;
- possible socio-economic consequences and philosophical implications of the patent system as applied to stem cells (further research, access to health care).
2.7. PATENTS AND FURTHER RESEARCH AND DEVELOPMENT
Although the appreciation of the patentability of an invention in biotechnology as in other fields is a matter of a case by case evaluation by a patent office and eventually by a court, the
Group again insists on the necessity to avoid the granting of too broad patents that would impair further research and development.
In the new area of stem cell research, the potential use is hoped to expand over time and stem cell lines may provide very important research tools. In addition to the academic exemption, it is essential to secure that patents on stem cell lines are not too broad, as this may have adverse effects on the aim to support further innovation to the benefit of health care.
It is therefore the opinion of EGE that patents shall only be granted, when the patent claim refers to a specific and a sufficiently accurately described stem cell line and its industrial application. That involves a consistent relationship between a patent claim and the description of the invention.
2.9. PATENTS AND ACCESS TO HEALTH CARE
The patent creates a control regarding commercial use. This raises questions as to the uses which are covered by the patent.
To secure that patent holders do not misuse their rights for example by charging unreasonable fees for the use of their inventions, EGE finds that the recourse to compulsory licence should be encouraged when the access to diagnosis and treatment is blocked by misuse of patent rights.
The EGE stresses the fact that it is the responsibility of the states to establish legal procedure for the delivery of compulsory licence and to examine if fair access to health care justifies such a procedure.