Consider the idea of inventions the commercial exploitation of which would be contrary to ordre public or morality. [EPC2000, Article 53(a)] Contrast these types of patent subject matter with other related subject matter which has been found to be patentable. Where do the borders of morality/immorality seem to lie in current law?

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With regard to the excluded subject matters especially the exploitation of biotechnological inventions such as life patenting with regard to human related gene modifications, stem cell research, but also the breeding of plant and animal varieties has drawn lots of publicity.

But what inventions are deemed moral or immoral from a public ordre perspective in Europe? For subject matters which come under the respective provisions for not granting a right to inventions of which the commercial exploitation would be contrary to ordre public or morality, the European Regime provided legislative guidance by issuing the EC Biotechnology Directive which is reflected in the EPC 2000 and, despite some slight verbatim differences, is enacted in the statutes and schedules of the Patent Act 1977. At the IPO, the threshold for moral issues goes beyond biotechnological invention, and thus, is broadly defined by the respective examination guidelines as to prevent the patent grant of an invention that would be expected to encourage offensive, immoral or antisocial behavior.

Nevertheless, the respective schedule focuses on biotechnology and sets out that processes for cloning human beings and modifying the germ line genetic identity of human beings are clearly excluded on grounds of immorality, whereas the uses of human embryos for industrial or commercial purposes also come under inventions are currently not patentable on moral grounds. Additionally, processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes are not patentable due to moral issues.

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In case of plant breeding or biotech seeds, besides the fact that European Parliament called the EPO also to exclude from patenting products derived from conventional breeding and all conventional breeding methods, including SMART breeding (precision breeding) and breeding material used for conventional breeding, and the critics’ arguments that seed patents impose an abuse of the patent law by using it as a tool of misappropriation which turns agricultural resources into the intellectual property, the fact that Monsanto already owns 36% of the tomato seed varieties registered with the Plant Variety Office of the EU, as well as 32% of ...

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