ABSTRACT

This chapter examines European Patent Office (EPO) jurisprudence in the light of the policies underlying Article 53 European Patent Convention (EPC) and assesses whether or not such policies continue to apply. In respect of Article 53(a) the implications of EPO jurisprudence, according to which morality is a matter for European institutions, is considered in the context of national law. In respect of Article 53(b), case law developments, suggesting that judicial authorities deny patentability to a wide range of biotechnological inventions, are assessed. The second hurdle which Article 53(b) EPC presents for breeders is that plants or animals produced by means of an 'essentially biological' process are not patentable. Under Article 53(b) EPC Contracting States may not exclude micro-organisms from patent protection. EPO jurisprudence is unclear in respect of subject-matter patentability and the application of Article 53(b) EPC is likely to result in inconsistency of practice among EPC States.