Understanding morality as a ground for exclusion from patentability under European law

Abstract

There is a common presumption that patent law, at least up until its encounter with biotechnology, was hermetically sealed and closed from external considerations. Some commentators have thus said that patent law is morally neutral (1), and the grant of a patent a non-ethical event (2). From this follows the belief that to ask patent examiners to consider moral issues is a novel approach (3). This is a fallacy (4) that arises from an incorrect understanding of two notions: nature of the monopoly grant in a patent, and significance of the legislative provision for exclusion from patentability on grounds of morality and public ordre