Ethical Limits for Patentability? On the Board of Appeal’s Balancing of Animal Suffering and Medical Benefit – T 0682/16 Non-human organism/INTREXON of 5 June 2020

Abstract

Patent law and ethics share a problematic relationship. Since the 1990s, when such cases as the genetically modified ‘oncomouse’ led to demonstrations outside the European Patent Office (EPO), patent law has attracted a great deal of public attention and ethically charged criticism. Some of this criticism relates to the patent proprietor’s ability to exclude competitors from commercially using the invention, but its principal focus tends to be on the patenting of inventions that cover sensitive objects such as living matter. The European Union’s (EU) Directive 98/44/EC did not provide satisfactory answers. Whereas some of its recitals point to ethically connoted (bio)patenting goals, the ordre public and morality exclusion from patentability in its Art. 6(1) and the accompanying exemplifying list of Art. 6(2) – which correspond to Art. 53(a) European Patent Convention (EPC) and Rule 28(1)(a-d) Implementing Regulations to the EPC (IREPC) – have raised further questions. Two of those questions...