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Exclusion by inclusion? On difficulties with regard to an effective ethical assessment of patenting in the field of agricultural bio-technology

By C. Baumgartner

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Abstract

In order to take ethical considerations of patenting biological material into account, the so-called "ordre public or morality clause" was implemented as Article 6 in the EC directive on the legal protection of biotechnological inventions, 98/44/EC. At first glance, this seems to provide a significant advantage to the European patent system with respect to ethics. The thesis of this paper argues that the ordre public or morality clause does not provide sufficient protection against ethically problematic uses of the patent system within the area of life. On the contrary, there are worrisome obstacles to any effective and comprehensive critical analysis of the ethical aspects of bio-patenting, especially in the field of agriculture. These obstacles can be seen as indirect consequences of the implementation of ethical considerations in form of the ordre public and morality clause in the EC Directive. Therefore, Article 6 of the EC Directive on the legal protection of biotechnological inventions seems to ultimately weaken the position of ethics in the debate concerning bio-patenting because the ordre public and morality clause is usually interpreted in an exclusively bio-ethical way in the sense of an "intrinsic ethics," which is primarily interested in questions regarding the moral status of particular entities. It is argued that an important cause of this phenomenon is that the decisive reasons against bio-patenting are concerns of social ethics, and not bio-ethics.

Date 2006
Publication Title Journal of Agricultural & Environmental Ethics
Volume 19
Issue 6
Pages 521-539
ISBN/ISSN 1187-7863
DOI 10.1007/s10806-006-9006-9
Language English
Author Address Faculty of Arts and the Humanities/Theology, University of Utrecht, Heidelberglaan 2, 3584 CS Utrecht, Netherlands. c.baumgartner@theo.uu.nl
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Tags
  1. Bioethics
  2. Biotechnology
  3. Ethics
  4. Europe
  5. Law and legal issues
  6. Laws and regulations
  7. Legal aspects
  8. patents
  9. peer-reviewed
  10. principles
  11. Social psychology and social anthropology
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  1. peer-reviewed