Biotechnology and ethics
According to the Patents Act, inventions whose exploitation is contrary to public order or morality cannot be patented.
The following examples are raised in the Act:
- Reproductive human cloning
- Modifications of the genes in human sex cells
- Industrial use of human embryos
- Modifications of the genes in animals that can cause them suffering, without resulting in any significant medical benefits to humans or animals
It is important to distinguish between the ethical judgement required by the Patents Act and the ethical judgement of how an invention is exploited in society. An invention is patentable if it has any ethically acceptable use, even if it could be used in hundreds of unethical applications.
Other laws in society make sure that inventions are not exploited in an unethical way. The patent system exists to stimulate the development of technology, not to control it. Ethical guidelines from the Swedish Research Council, as well as other ethical advice, make sure that we get the technology which benefits us best, and that we avoid unwanted and unethical technology.
An example is explosives, which can be very useful and are patentable. But they can also be used in letter bombs, which have no ethical use and cannot be patented. The fact that a potential unethical application exists does not make explosives an exception to patentability.
The exceptions to patentability in the Patents Act (see above) have been stated in order to ensure respect for human dignity and to prevent animals from being caused unnecessary suffering. Therefore, patents cannot be granted in the areas listed above, even if they could also have ethical applications.
Human, humane embryonic stem cells and patents
Stem cells are a type of “immature” (undifferentiated) cell that, as such, do not have very many functional properties in the body, but which work as a source of new cells.
There are different stem cells with varying capacity to produce different cell types. Adult stem cells, which can be isolated from organs in an adult individual, are believed to have a fairly limited capacity and mainly produce the cell types that are present in the organ the stem cell came from.
Embryonic stem cells, which are taken from the blastocyst 4–5 days after fertilization, probably have a much greater capacity to develop and can produce all the cell types found in the body. They are therefore a very attractive source of cells, which can be used for cell-based treatments of diseases such as Parkinson’s disease, diabetes, and more.
The Patents Act states that “the use of human embryos for industrial and commercial purposes” must be excluded from patentability. Methods which use human embryos, such as the production of embryonic stem cells, are therefore not patentable.