Exclusions and Exceptions to Patent Eligibility Revisited: Examining the Political Functions of the “Discovery” and “Ordre Public” Clauses in the European Patent Convention and the Arenas of Negotiation

Abstract

This chapter sheds light on the normative and political functions of the exclusions and exceptions within the European Patent Convention. In addition, it deals with arenas in which negotiations about patent eligibility are taking place, and with discursive forms of governing Intellectual Property Rights. This will be exemplified at the case of Synthetic Biology. To that end, the article explains the inherent rationales of two fundamental limits within European patent law: (1) the boundary between discovery and invention (Art. 52 EPC) as exclusion from patentability; (2) the ordre public and public policy clause (Art. 53 (a) EPC) as exception from patent eligibility. Both these exemptions in patent law bear a normative function, however, as is argued, they rely on opposing inherent logics, functions, and regulatory aims. For the former exclusion, the guiding principle and teleology is to “enable access for all”. The latter exception implies a converse logics, namely that preferably no one should access and apply the technological knowledge in question. The second part of the article contends that decisions on whether and how to grant patents in a new technical area also depend on institutional frameworks: From a political science perspective, the administrative, legislative and judicial arena will be distinguished. The third part asserts that metaphoric framing of new scientific advancements is another crucial factor for the question of patent eligibility. Semantic framing does relate to the articulation and mobilization of consent or dissent, and thus to public acceptance. Proceeding in such a manner means that research is “upstreaming” ethics by anticipatory impact assessment. Policy analysis in the biosciences is also regarded as an element in the constitutionalisation of Intellectual Property Rights.