Neuroenhancement Patentability and the Boundaries Conundrum in Psychiatric Disorders

Abstract

Patent offices worldwide deny patentability to innovations which stand against the ordre public: does enhancement represent a value-laden societal threat? Patent offices also reject applications for therapeutical methods: when is enhancement also a therapeutical method? One specific class of enhancers, i.e. pharmaceutical neuroenhancers, is particularly complex in this respect: certain molecules can potentially function both as treatment for neuropsychiatric disorders and as recreational enhancers for non-patients’ brain. Hence, the present work advances the debate on enhancement patentability in two directions: ratione loci, by scrutinising China’s stances on enhancement’s safety and morality, compared to the most frequently explored Western jurisdictions, namely the EU and the US; and ratione materiae, by illuminating the porous bioethical boundaries between treatment and enhancement in the domain of neuropsychiatry. It challenges patent offices’ de facto regulatory role in defining and policing citizens’ access to neuroenhancing substances through misplaced or pseudo-scientific intellectual-property narratives of innovativeness and morale.