This article compares and contrasts the patenting of animals, humans, and biotechnological inventions in the United States, at the European Patent Office, and within the European Union. It shows that morality is not a concern of U.S. legislative instruments or courts and patents have been granted liberally on living organisms, from microorganisms to mammals, in North America since the 1980s. By way of contrast, both European legislative instruments enshrine a morality bar that must be employed to deny patentability. Their implementation, however, is unpredictable due to a lack of detailed guidance on what morality means. The remit of the morality bar extends principally to humans, but the interests of animals must now also be factored into the equation. The manner in which this is done is unclear and patents on plants, although controversial among the public in general, do not unduly trouble lawmakers now that a significant time has elapsed since this Rubicon was crossed. This article explains and critically assesses these systems while identifying some of the ethical problems that are likely to emerge in due course focusing on the ad hoc regard paid to animals and the lack of a structured approach to considering their rights or welfare.

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