Can Moral Utility Deter American Tech’s Complicity in Human Rights Abuses?
In the Xinjiang province of China, Uyghurs, an ethnic and religious minority, are subjects of an intense surveillance state implemented by the Chinese Communist Party (the “CCP”).[1] Cameras, facial recognition software, data collected with the help of neighborhood informants, and many other technologies are used to track Uyghurs.[2] Many are taken from their families and homes without charge and are sent to concentration camps where the Chinese Government aims to erase their cultural heritage and adherence to their Islamic faith.[3] International organizations and governments around the world, including the United States, have condemned the CCP’s actions, calling them genocide and crimes against humanity.[4]
Many of these technologies and hardware are provided by Chinese tech companies which are often state-controlled.[5] It is what is within these technologies, however, that is truly shocking: many of these Chinese companies are using American technology.[6] Xiamen Dragon Information Technology Co. Ltd., for example, uses Intel dual processors in their facial capture technologies which are used in Xinjiang.[7] Other companies providing technologies for authoritarian use have listed American tech giants such as Microsoft, Cisco, Oracle, and Dell as commercial partners.[8] Even as the United States has attempted to restrict trade with Chinese-controlled tech companies, some American companies continue to attempt to do business.[9]
Beginning under the Trump administration and continuing into the Biden administration, heating tensions with China have prompted the United States to increase tech trade restrictions.[10] Still, these restrictions may not be effective enough. For example, Seagate Technology Holdings was recently caught supplying a substantial amount of hardware to Huawei Technologies, a major Chinese state-controlled company, despite trade restrictions implemented by the Commerce Department.[11] New policies may need to be considered to prevent American companies from aiding the Chinese government in its human rights abuses.
One potential, but admittedly ambitious, solution lies within the American patent regime’s concept of moral utility. What if we could hit tech companies where it hurts, by denying or revoking patents, when they knowingly deploy technology to be used in human rights abuses? The American patent system aims to incentivize inventors to advance scientific discovery by granting a monopoly to use or profit from his or her invention.[12] In order to obtain a patent, the invention must fall within statutorily defined patentable subject matter, be useful, be novel, be nonobvious, and the inventor must follow proper disclosure requirements.[13] One judicially-created doctrine of patent eligibility, the moral utility doctrine, was once a part of patent jurisprudence, but has faded in recent decades.[fmfn]See Andrew A. Schwartz, The Patent Office Meets the Poison Pill: Why Legal Methods Cannot Be Patented, 20 Harv. J. L. & Tech. 333, 361 (2007).[/mfn] The concept of moral utility essentially holds that patents should not be given to material which is primarily used for a purpose that is morally repugnant.[14] In the past, patents have been struck down on this basis for devices involving games of chance or gambling.[15]
In recent decades however, American patent law has moved away from the moral utility doctrine.[16] Many commentators and experts now see moral utility as very weak, if not dead, in American patent law.[17] The nail-in-the-coffin the moral utility doctrine came in the Federal Circuit’s decision in Juicy Whip, Inc. v. Orange Bang, Inc., where the Court held that inventions intended to deceive were still patentable.[18] The sentiments around why this change has occurred are varied, but a main feature may be the fact that what is considered immoral changes over time.[19] However, this decrease in usage of the doctrine by courts does not necessarily mean that it is totally dead.[20] There may be room for a pointed resurgence of the moral utility law to combat the problem of American tech in human rights abuses in Xinjiang and elsewhere.
A revitalization of the moral utility doctrine could follow a European model. According to the Guidelines of the European Patent Office (“The “EPO”), “any invention the commercial exploitation of which would be contrary to ‘ordre public’ or morality is specifically excluded from patentability.”[21] As the Guidelines state, it is a very rare case that a patent is actually denied because of a moral utility problem.[22] A patent cannot be denied on the grounds of moral utility if the material at issue has only the potential to be abused for immoral uses in addition to its other morally acceptable uses.[23] The EPO offers the test that a patent should be denied only if “the public in general would regard the invention so abhorrent that the grant of patent rights would be inconceivable.”[24]
Clearly, this concept of moral utility would not cover a great amount of the problem that has been presented. For example, the Intel processors that are used in Xiamen Dragon’s facial capture technology[25] would not be covered under the EPO’s rule because Intel core processors can, and primarily are, used for a host of other completely non-malicious uses. There may be some situations in which this type of doctrine can be helpful. American tech giant Cisco has been accused of providing customized hardware to China for implementation in its Golden Shield (a.k.a. “The Great Firewall of China”) project.[26] These customizations were allegedly designed to help China identify, track, arrest, kidnap, and torture members of the Falun Gong religion which the state aimed to persecute.[27] Cisco allegedly knew that its technology would be used along these lines but customized and sold the hardware anyway.[28]
Where the sale of American technology to authoritarian governments is as egregious as it is alleged in the case of Cisco, a pointed moral utility doctrine can prove helpful. The concern about generational changes in morality[29] would likely be less of an issue because the doctrine would be directed to cases where it is not only a vague sense of morality being violated, but a clear attack on the fundamental values of freedom and privacy that are central to American life. In other cases, such as with Intel core processors, perhaps another route would be more appropriate. Still, to combat human rights violations, or at the very least to not allow American technology to contribute to them, something needs to change. A potential start could lie with a change in the American perception of moral utility.
Footnotes
