4.1 Matter contrary to "ordre public" or morality

Any invention the commercial exploitation of which would be contrary to "ordre public" or morality is specifically excluded from patentability. The purpose of this is to deny protection for inventions likely to induce riot or public disorder or to lead to criminal or other generally offensive behaviour (see also F‑II, 7.2). Antipersonnel mines are an obvious example. Examples of biotechnological inventions falling under Rule 28 are listed in G‑II, 5.3. G 1/03 explains that practical examples under Art. 53(a) arise from the fact that not everything can be done to human beings that can be done to other living beings. For example, avoiding offspring that, for economic reasons, are unwanted because of certain properties (sex, colour, health) may be quite legitimate in the case of domestic animals, but it would be contrary to "ordre public" or morality when applied to human beings.

This provision is likely to be invoked only in rare and extreme cases. A fair test to apply is whether it is probable that the public in general would regard the invention as so abhorrent that granting patent rights would be inconceivable. If that is clearly the case, an objection is raised under Art. 53(a); otherwise not. The mere possibility that an invention could be abused is not sufficient to deny patent protection pursuant to Art. 53(a) EPC if the invention can also be exploited in a way which does not and would not infringe "ordre public" and morality (see T 866/01). If difficult legal questions arise in this context, then refer to C‑VIII, 7.

Where the claims are found to relate in part to such excluded subject-matter, this may lead to the issuing of a partial European or supplementary European search report under Rule 63 (see B‑VIII, 1, B-VIII, 3.1 and B-VIII, 3.2). In such cases, if the applicant does not make an appropriate amendment and/or provide convincing arguments in response to the invitation under Rule 63(1) (see B‑VIII, 3.2) or to the search opinion under Rule 70a (see B‑XI, 8), an objection under Rule 63(3) will also be raised (see H‑II, 5).