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of the oncomouse or that method. [4]

Thus, when reading the words “contrary to ‘ordre public’ or morality”, it should be related to the “commercial exploitation”. This might also be the only way to justify the morality provision when responding to the argument made by Davis [5] who thought in Harvard/Onco-Mouse that causing an animal to suffer can never be justified even if it may produce positive benefits to human beings. In addition, as mentioned by Thomas and Richards [6] , many people dislike patenting any form of life regardless in which way it will be utilized. Since patent law merely focuses “commercial exploitation”, it can then avoid much unnecessary debate of the fundamental ethical issues here. Furthermore, according to Torremans [7] , the term “commercial exploitation” also means the mere fact that a particular form of behavior is illegal (or immoral) does not lead to a foregone result that an invention which facilitates it will be unpatentable. [8]

II.Inconsistent Standards of Morality—from the Development of Case Law

The biggest problem is prima facie lack of explicit or even implicit morality standard [9] in the Article 53(a) EPC and a wildly-accepted standard not formed yet. Meanwhile, the development of case law establishes the different and inconsistent standards interpreted from the same provision. At the moment, there are two standards exist, namely the “unacceptability” standard and the “abhorrence” standard. [10] The following cases will be classified into two categories according to the different standards in order to exhibit the uncertainty and confusion under current European patent system.

2.1 Balancing Exercising and Standard of Unacceptability

2.1.1 Harvard/Onco-Mouse [11]

At first, the Examining Division argued that “patent law is not the right legislative tool for regulating problems arising in connection with genetic manipulation of animals” [12] . However, when appealing to the Technical Board of Appeal, it was observed that there were “compelling reasons” [13] to consider the question of patentability here was related to Article 53(a) EPC. [14] The Board considered whether to deny patenting the invention depending mainly on:

[A] careful weighing up of the suffering of animals and possible risks to the environment on the one hand, and the invention’s usefulness to mankind on the other. [15]

This means that the Board here compared the benefits and detriments (namely, moral and immoral aspects) and the final decision-making depends on the result of balancing. It is equivalent to whether the invention would be accepted or not on such “weighing up”, namely, it would only be accepted when immoral aspects is outbalanced, otherwise not.

After the case was remitted, the Examining Division through the balancing exercise, came to the conclusion that since the overall positive aspects of the invention (namely, the usefulness in cancer research) outbalanced the negative aspects (namely, the suffering of mice and risks to the environment), [16] it fell outside the morality exception.

Not long after, in the Upjohn case (Hairless Mouse) concerning patenting of a genetically modified mouse, which would cause the mouse to lose its hair. The EPO used the “balancing exercise” and deemed that the invention was immoral because the benefit of it was just to promote experiments to