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From Engagements to Re-engagement: The Expression of Moral Values in Patenting Proceedings, Present and Future

Harmon, SHE

European Law Review   31 (5) 642-666

January 2006   (Published online October 2011)

In the regulation of new technologies, publics are often left questioning the value of their contribution to the final regulatory content, or feeling excluded from the regulation-making loop altogether. Dissatisfaction with upstream participation naturally results in stakeholders looking further downstream for influence. In the biotechnology arena, patent proceedings represent a participatory tool for stakeholders who may have been left out of or failed to achieve their goals upstream. Although they may have a reduced capability for shifting paradigms or shaping policy formulation, downstream expressions of values can be lively, and the acceptance or rejection of stakeholder positions by downstream regulators can be of great significance. Here the use of the morality provision in EPO proceedings is contrasted as between earlier and more recent decisions. It suggests which values have been given expression in this forum, how they have changed over time and how a wider pool of values might be incorporated into the existing system.