16 - Institutions, Interpretive Communities and Legacy in Decision-Making

Summary

Institutional theories examine shared understandings or ways of doing things which can become engrained over time, developing into interpretative patterns within decision-making frameworks. Similarly, certain concepts within law can become imbued within a body of past practice, which can make legal change difficult to achieve. In some cases, even when legal change is suggested, practice within a field may be drawn back to historical institutional understandings. This chapter focuses on the European Patent Office (EPO)’s approach to interpreting morality provisions for biotechnological inventions, to highlight how traditional conceptions of the limited role of ethics within patent law have become engrained in EPO practice. Even though biotechnologies have advanced, and their patentability poses heightened ethical concerns, the interpretative communities within patent law have remained static. Thus, engrained institutional understandings of the limited role of ethics within patent law continue to dominate. This can encumber decision-making and, especially in areas of rapid technological and societal change, weaken the law’s responsiveness, which warrants much greater examination.