O. Carter Snead

Carter Snead, Notre Dame Law School, LAMB Faculty Fellow

Carter Snead
Professor of Law
William P. and Hazel B. White Director of the Center for Ethics and Culture
LAMB Faculty Fellow


574-631-8259
snead.1@nd.edu

Spotlight Research:  The Patentability of Human Embryos in the U.S. and E.U.: A Comparative Perspective

The Patentability of Human Embryos in the U.S. and E.U.: A Comparative Perspective (with Professor Lorenza Violini, University of Milan) (forthcoming)

This article examines the competing ways in which U.S. federal law and European Union law seek to shape market behavior in the name of human dignity and the common good by means of intellectual property law.

This article will examine and compare the competing roles played by patent law and policy in the vexed context of human embryonic stem cell research. In American law, while the traditional inquiry into a proposed invention’s “usefulness” might have considered the moral value of the invention, current U.S. patent practices do not take “morals” into account. With respect to those compositions of matter and manufactures that are not naturally occurring (but are made by man), the U.S. Supreme Court, interpreting the relevant existing patent laws, held that the nature of the subject—including whether or not the subject consists of a living organism—is irrelevant to the issue of patentability. These were statutory, not constitutional, interpretations. Congress, of course, retains its authority to enact legislation that could exclude certain subject matter from patentability.

This is what Congress has done in the United States – prohibiting the patenting of living human embryos, but allowing patents on cellular based products (e.g., stem cell lines) derived from the of such embryos. By contrast, the European Court of Justice in the landmark case of Brustle v. Greenpeace interpreted Directive 98/44/EC of European Parliament and of the Council of 6 July 1998 (on the legal protection of biotechnological inventions) to forbid patenting of embryos as a violation of order public or morality, and a violation of human dignity. Moreover, the ECJ held that patents that depend on prior destruction of embryos are likewise unlawful,immoral, and contrary to human dignity. The article explores these differing approaches, and seeks to uncover the foundational goods that each policy seeks to promote, and the harms they seek to avoid.

 

Other Research

  • The Patentability of Human Embryos in the U.S. and E.U.: A Comparative Perspective (with Professor Lorenza Violini, University of Milan) (forthcoming)
  • Technology and the American Constitution in Eloise Scotford, Karen Yeung, and Roger Brownsword, eds.,The Oxford University Press Handbook on The Law and Regulation of Technology (forthcoming Oxford University Press 2015).
  • Autonomy and Individual Responsibility, in Henk ten Have & Berd Gordijn, eds., Compendium of Global Bioethics (with Kelli Mulder-Westrate) (Springer 2014).
  •  Human Dignity in U.S. Law, in The Cambridge University Press Handbook on Human Dignity (Roger Brownsword, ed.) (Cambridge University Press 2014).
  • Human Dignity in American Public Bioethics in Human Dignity in Bioethics: From Worldviews to the Public Square (Stephen C. Dilley & Nathan J. Palpant, eds.) (Routledge 2013).