Immoral Patents

Only to a limited extent have U.S. legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and development related to biotechnology, including reproduction technologies, and particularly the use and destruction of embryonic stem cells, embryos, and fetuses—areas of considerable moral and ethical concern. Nor has there been debate regarding patentability with respect to other areas of concern, such as technologies that damage the environment. In this Article I explore the patentability of controversial technologies by identifying and analyzing the strengths and weaknesses of the argument that immoral or unethical technologies should not be patentable. Toward that end, I trace the history of the patent system’s treatment of technologies deemed immoral or unethical, consider the arguments that moral and ethical considerations should cause the law to exclude technologies from the patent system, and identify the best approach should moral and ethical considerations be reintroduced into the patentability analysis. In particular, despite clear parallels between the use of public policy arguments in contract law and patent law, my analysis presents the first attempt to conceptualize moral and ethical concerns in the patent field by considering the strengths and weaknesses of the traditional contract defense of unenforceability as against public policy