Excluded Subject Matter (12) – Contrary to ‘ordre public’ or morality

In this final article on excluded subject matter we will look at the exclusion of inventions where the commercial exploitation of the invention would be contrary to 'ordre public' or morality.  This exclusion is rarely seen, but covers some very controversial areas. 

The exclusion is somewhat different to the others in that it relates to inventions where their commercial exploitation breaches 'ordre public' or morality.  That is, there is no consideration whether the act of patenting causes concerns under these headings, but only whether the commercial exploitation of the invention would. 

The dual exclusions of 'ordre public' and morality reflect different categories of activity which are considered to be against the general principles of human behaviour.  'Ordre public' relates to the protection of public security and individuals as a part of society, and so excludes inventions where their commercial exploitation would breach the public peace or social order, or cause serious harm to the environment.  The question of morality turns on whether the commercial exploitation of the invention would go against generally accepted standards of behaviour in European society.   

The threshold for this exclusion is high, and the EPC makes clear that an invention does not fall within it merely because the exploitation is illegal in at least one contracting state. The threshold can be usefully paraphrased as a question -- "Is the exploitation of the invention so abhorrent that the grant of patent rights would be inconceivable?". 

One area of inventions that have been excluded is those which require, at the filing date, the destruction of human embryos to exploit the invention.  The caveat relating to the filing date is important as it means an invention does not become patentable if a non-destructive way of implementing the invention is later developed.  Anti-personnel mines are also excluded, but a more general claim which does not specify the particular use may not be excluded because it could be commercially exploited in a different way. 

The EPO have developed a three-step test where inventions concern the genetic manipulation of animals. The test attempts to balance the potential suffering of animals against the potential medical benefits to humans or animals. 

This exclusion rarely arises in most areas of technology, but when it does arise the decision is always extremely dependent on the facts of the case, and almost always controversial. 

This article is a part of our EPO Practice and Peculiarities series. Click here to explore.