摘要:这是一篇留学生法律体系的相关 Essay,(欧洲专利不应该被授予关于)发明的商业开发将会违背“公共程序”或者道德,这样的开发不应仅仅因为它被法律或者规则在一些或者所有的缔约国中被禁止,而被视为违法。
cure hair loss, therefore, the cosmetic end was apparently not outweighed by the suffering of the mice. [17] In other words, this application is “unacceptable” though a careful “weighing up”.
2.2.2 Plant Genetic Systems/Glutamine Synthetase Inhibitors (hereafter “PGS”) [18]
The Opposition Division of this case claimed that:
[This] invention did not belong to the category of inventions which the public in general would have regarded as being so abhorrent or so dangerous that the grant of patent rights should have been inconceivable. [19]
They hold the opinion that patentability should only be denied in such extreme cases. Obviously, the Division did not apply the “unacceptability standard” in Harvard/Onco-Mouse, instead they chose the standard of “abhorrence” [20] . And this justified that why they considered the invention could only be judged as immoral when it was “universally regarded as outrageous”.
However, the Technical Board of Appeal seemed to adhere to the standard of “unacceptability” [21] and they observed that since no sufficient evidence of actual disadvantages has been adduced, the assessment of morality may not be based on so called “balancing exercise” through weighing up benefits and disadvantages. [22]
2.2 Rebuttable Presumption and Standard of Abhorrence
2.2.1 Howard Florey/Relaxin [23]
Recognizing a patent is merely to prevent others from practising the same invention rather than giving the patentee any rights over a human being. [24] The Opposition Division of this case said that the opponents' arguments on “slavery and dismemberment of women” was a “fundamental misunderstanding” of the function of patent system. [25] The Division then stated that the morality exclusion was limited to few extreme cases where there was an overwhelming consensus that the exploitation of an invention would be immoral. [26] It further claimed:
[A] fair test to apply is to consider whether it is probable that the public in general would regard the invention as so abhorrent that the grant of patent rights would be inconceivable. If it is clear that this is the case, objection should be raised under Article 53(a); otherwise not. [27]
Thus it is clear that this case through utilizing the “rebuttable presumption” approach which meant “the immoral aspects could be only be rebut where they are so significant that a favourable decision would be untenable” [28] , determined by the so called abhorrence standard.
Based on this standard, the Division then got the conclusion that this invention fell outside Article 53(a) because first it did not against “widely-accepted moral standards of behaviour by promoting slavery, the sale of women, and so on” and second at the moment there was no such consensus that patenting H2-relaxin (human genes) was immoral. [29]
2.2.2 Leland Stanford/Modified Animal [30]
The Opposition Division conceded that the animals in question are not genetically modified pointed out by the proprietor, thereby, strictly speaking it should not use the Rule 23(d) EPC [31] . Arguably, however, the Division observed that the “balancing exercise” would not be suitable for all patents concerning “genetically modified or not genetically modified animals”. [32]
Subsequently, the Division noted that the purpose of Article 53(a) is to
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