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exclude from patentability any kind of extreme subject-matter which would be regarded by the public as so abhorrent that “the grant of a patent would be inconceivable” [33] rather than as merely controversial. [34] In other words, the Division in this case adopted the “abhorrence standard”, and as a result, it utilized the approach of the “rebuttable presumption” instead of the “balancing exercise” to judge whether the invention is immoral or not.

2.2.3 Wisconsin Alumni Research Foundation/Stem cells (hereafter “WARF”) [35]

The Technical Board of Appeal of this case claimed that a narrow interpretation (i.e. permitted grant) should be applied when two alternative meanings could be construed from one provision of the EPC. [36] The board further observed that “the correct approach in this respect was to undertake the balancing exercise advocated by Harvard/Onco-Mouse”. [37]

However, when the President of EPO was asked by the Enlarged Board of Appeal to comment on this case, [38] he indicated that it would lead the assessment of morality outside the ability and mandate of the EPO by using the “balance exercise” at the initial examination phase and arguably it was unsuitable to balance benefits and disadvantages regarding human being. [39] It seemed the standard of abhorrence was more in favored here.

2.3 Summary

According to the exploration of the cases above, it is obvious that the two different morality standards were using confusingly and no unitary opinion forms yet. For instance, generally speaking, in the Harvard/Onco-Mouse and Upjohn case as well as Harvard/Transgenic Animal [40] , the “unacceptability” standard was utilized as a criterion. On the other hand, the “abhorrence” standard was applied in Howard Florey/Relaxin, Leland Stanford/Modified Animal and WARF. Worse, it is not unusual that different level of examiners would adopt different standards. It is self-evident here that the argument of flexibility of two standards is untenable, since for law, certainty is the most important.

As “abhorrence” standard needs the invention “so abhorrent that the grant of patent rights would be inconceivable”, it seems stricter than the “unacceptability” standard which only needs the immoral aspect outbalance the moral aspect. It is argued that the “abhorrence” standard as a stricter criterion likely to be applied when relating to human beings and the “unacceptability” standard is more possibly to be utilized when regarding to animals and plants. It can be argued that for example the Opposition Division in PGS which concerned plant genetics utilized abhorrence standard while the Technical Board of Appeal in WARF which concerned human embryonic stem cell adopted unacceptability standard by balancing exercise. Furthermore there is also no reason why different cases use different standards or approaches. It must be borne in mind the subject matter is not concerned by morality provision, rather, it only focuses on the “commercial exploration” which has been analyzed in the first section. Therefore, discriminating human and non-human cannot be justified. Let along it is sometimes very difficult to distinguish human being from animal, different standards can only raise more confusion and uncertainty.

III.Assessing Public Standard of Morality

The next important question is how to ascertain the opinion of the “public in general” i.e