Public order and morality regarding inventions in biotechnology

Student thesis: Master Thesis and HD Thesis

  • Sezen Andersen
4. term, Laws, Master (Master Programme)
The purpose of this thesis has been to investigate the extent of the concepts of morality and public order in biotechnology directive article 6, united with the international standards and their importance in relation to the implementation by the member states patent law.
Firstly, the thesis describes the concepts of public order and morality. According to the biotechnology directive article 6; "Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation."
The words of Article 6 is so generally written that it does not help to provide a precise definition of the terms.
According to the biotechnology directive article 6 an invention must not violate the public order or morality. These two concepts have so much meaning, yet it is not completely covered by the directive. The list of invention which cannot be taken patent are a view on what would be against public order and morality. As the biotechnology directive article 6 is so superficially described it leaves the interpretation to the countries in EU.
In the case C-377/98 from the Netherlands the following problems are stated; the interpretation of the biotechnology article 6 would create problems for the other members of the EU. The purpose of the biotechnology directive is to create similar patent laws across EU.
The aim of this master's thesis is to find interpretation of the concepts of Morality and Public Order. To further help along an interpretation this master's thesis will acquire views on the concepts from European Patent Convention and Charter for the fundamental human rights to further see how EPO is using European Patent Convention which has the same superficially described concepts of public order and morality as the biotechnology directive.
To cover an actual definition is very complicated because public order and morality are both concepts stated by the countries' culture and social standing. Therefore finding a definition which all countries can agree on is very complicated.
The evaluation of what these concepts are can be seen in the cases from EPO. In the T 0315/03 EPO writes that a definition of Public Order and Morality should not be left for the court systems in the different member countries of the EU. Instead it should be a question which should be worked on by the institutions of the EU. EPO choose an intermediate interpretation of Article 6 when they choose that even if an invention may be contrary to public order and morality, the biotechnology directive still allow patents on invention when they help to further treatment or research. This interpretation helps to further analyze the positive against the negative of the invention. In this evaluation it allows treatment and research. In Case EP - 96903521 it is questioned how EPC article 53 a. should be interpreted. In light of EPC Article 53 a, a patent on embryos contradict the moral norms that exist in the EU. Although in theory the WARF focuses on the cell cultures in their patent application, rather than cell cultures created using embryos, is the main focus still embryos. Based on the above analysis of the question the answer will still be yes. WARF may well have rejected the patent on the basis of the rule in the EPC 23, 53, and a CFGR.
The implementation of the biotechnology directive in England, Italy and Germany is clearly showing how a superficial description can mean a different implementation. Since the directive does not force the members of the EU to completely add the directive into the members patent law and article 6 and the patent law in the member countries isn't similar. That means that because of the different view on the use of human embryos, England, Italy and Germany have added the biotechnology directive differently. The main reason for this is the differences in their views on public order and morality. These two concepts have because of their difference in the different countries meant that the biotechnology directive is added to the patent law differently.
Publication date11 Aug 2014
Number of pages50
ID: 202079280