b) Concept of "morality" and "ordre public" 

The issue of morality and "ordre public" had been raised in T 356/93 (OJ 1995, 545), in connection with plants. The object of the invention was plants and seeds resistant to a particular class of herbicides so that they could be selectively protected against weeds and fungal diseases. This was achieved by stably integrating into the genome of the plants a heterologous DNA encoding a protein capable of inactivating or neutralising the herbicides. The patent was opposed under Art. 53(a) EPC 1973, in particular on the grounds that the exploitation of the invention was likely to cause serious damage to the environment.

The board held that the concept of morality was related to the belief that some behaviour was right and acceptable whereas other behaviour was wrong, this belief being founded on the totality of the accepted norms which were deeply rooted in a particular culture. For the purposes of the EPC, the culture in question was the culture inherent in European society and civilisation. Accordingly, inventions the exploitation of which was not in conformity with the conventionally accepted standards of conduct pertaining to this culture were to be excluded from patentability as being contrary to morality.

The board found that none of the claims related to subject-matter which could lead to a misuse or destructive use of plant biotechnological techniques because they concerned activities (production of plants and seeds, protection of plants from weeds or fungal diseases) and products (plant cells, plants, seeds) which could not be considered to be wrong as such in the light of the conventionally accepted standards of conduct of European culture. Plant biotechnology per se could not be regarded as being more contrary to public morality than traditional selective breeding.

In T 315/03 the board found that in the assessment of an Art. 53(a) EPC 1973 objection, no single definition of morality based on e.g. economic or religious principles represents an accepted standard in European culture. Opinion poll evidence was of very limited value for the reasons given in T 356/93 (OJ 1995, 545), where many drawbacks were identified, ranging from the type and the number of questions posed within one poll, through the size and representative nature of the cross-section of the population polled, to the manner of interpretation of the results obtained.

In T 356/93 the board defined the concept of "ordre public" as covering the protection of public security and the physical integrity of individuals as part of society. It also encompassed the protection of the environment. Accordingly, inventions the exploitation of which was likely to seriously prejudice the environment were to be excluded from patentability as being contrary to "ordre public". However, a decision in this respect presupposes that the threat to the environment be sufficiently substantiated at the time the decision is taken by the EPO.

In the specific case the board held that, although the documents submitted by the appellant (opponent) provided evidence of possible hazards from the application of genetic engineering techniques to plants, they did not lead to the definite conclusion that the exploitation of any of the claimed subject-matter would seriously prejudice the environment.

Regarding the compatibility with Art. 53(a) EPC 1973 of an invention involving genetically modified, herbicide-resistant plants, see also T 475/01.

In T 866/01 the invention related to euthanasia compositions which were used for producing humane death in "lower animals". The proprietor argued that the avowed use of the invention's teaching indicated in the patent ("bestimmungsgemäßer Gebrauch der erfindungsgemäßen Lehre") was the use of the claimed composition for mercy killing of lower animals and that this particular intended use did not infringe "ordre public" or morality. It was, in the proprietor's opinion not sufficient for an objection under Art. 100(a) and 53(a) EPC that the invention could also be exploited in a way that would infringe principles of morality or "ordre public". The board noted that no evidence had been provided that euthanasia of lower animals under the particular conditions described in the application would obviate any ethically based constitutional or other rules. The board therefore held that in the circumstances of the present case, Art. 53(a) EPC provided no legal basis for denying absolute substance protection for the claimed composition per se on the grounds that, with the exception of the intended use or exploitation, one or more of several or even all conceivable other exploitations or uses of the claimed composition (falling within the scope of protection) would be or could be regarded as breach of the principles of "ordre public" or morality, even if such conceivable exploitation might constitute a serious breach of the principle of "ordre public", such as a criminal offence including the killing of humans. The board noted that the mere possibility of abuse of the invention was not sufficient to deny patent protection pursuant to Art. 53(a) EPC.