Patents, the Establishment Clause and European Nations

When studying today, I came across an irony contained in one approach of our friends across the pond. In Europe, the European Patent Convention allows patent offices and courts to exclude inventions that offend notions of morality from patenting. The common requirement is demonstrated in the TRIPS Agreement:

Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law. TRIPS Agreement, Art. 27, par. 2


Animal rights activists and other moral campaigners can challenge or oppose patents on living organisms. The irony is that most European nations have much stricter laws against government’s establishment of religion than in the U.S.

In the U.S., under Establishment Clause doctrine, the government is not allowed to endorse a particular religion, nor are they allowed to endorse religion over irreligion. But they are allowed to acknowledge that religion exists, and so long as the government action is not with the purpose of benefiting religion, and its effect is not to advance or inhibit religion, then government actions relating to religion may be acceptable.

In Europe, Establishment doctrine operates differently. Justice Scalia in a 2005 dissent shared an anecdote that highlights the differences in his mind between America and the European nations:

On September 11, 2001, I was attending in Rome, Italy, an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed: “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

That is one model of the relationship between church and state-a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins, “France is [a] … secular … Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 (G. Flanz ed.2000). Religion is to be strictly excluded from the public forum.

McCreary County v. ACLU of Kentucky, 545 U.S. 844, 885-86 (2005) (Scalia, J., dissenting).

Granted, there is a difference between morality and religion. However, in modern U.S. jurisprudence, most “morality” based laws have either been expressly repealed or fallen out of vogue in the courts. That is, a law that is solely based on protecting the public “morality” will generally not be enforced, and one that may have multiple purposes will be upheld for the “secular” ones, as opposed to the “moral” ones. Without commenting on the merits of such an approach, the fact is that morality is not a basis for modern American law. However, America is still a nation where the Supreme Court opens its sessions with “God save the United States and this Honorable Court,” the President ends his addresses with “God bless America,” and the currency bears the mark “In God we trust.” Yet in this nation that acknowledges that religion exists, patents for inventions with immoral (but still legal) uses are allowed.

In Europe, on the other hand, where religion is strictly banned from the public sphere, and secularism is unquestionably the norm, patents may be denied or invalidated if the invention is objectionable based on moral grounds. It is totally ironic that in nations where God has been completely eviscerated from the public sphere, and the only moral code is one’s own, governments would allow morality to be the sole basis for blocking or invalidating patent protection for a completely legal invention. The benefit of the rule of law is that every citizen has fair notice for what he or she may or may not do under the law. While America isn’t perfect, at least our application of the rule of law is consistent across the board. And for that, God Bless America.

  • Cory S. Clements

    Interesting indeed. I am still trying to define secular morality so I can attempt a possible defense for its sustainability. Is it based on the notion that rational human beings are able to recognize that which is inherently “immoral” in society? And those rational people are the ones elected to decide by “legislative fiat” what is and is not moral? Clearly they cannot adopt the Ten Commandments for their guidepost of morality, because that contradicts the tender sensibilities of secularism. 

    Do they look to Deontology and Kant’s Categorical Imperative mandating that we treat people as an end, and never as a means merely. Or do they look to the principles of Utilitarianism, maximizing pleasure/happiness and minimizing pain/sadness? Do they base morality on a supposed social contract that, at some point in time, people created to exit the state of nature where chaos and immorality reigned? This issue is quite ironic. Quite ironic, indeed.