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. the public standard of morality, it is, to a large extent, the presupposition when applying “rebuttable presumption”. Due to its intangible and subjective nature, it is more arduous for the opponents to accumulate the evidence and establish that the invention falls within the morality exception compare to the physical evidence [41] . In addition, what can constitute acceptable evidence is still debatable. [42]

It was the opinion of the technical Board of Appeal in PGS that public standard of morality was determined by the belief “being founded on the totality of the accepted norms which are deeply rooted in a particular culture” [43] , which should be European culture in this case. And the Board then rejected “surveys and opinion polls” with the view that the moral norms that deeply rooted in European culture could not be reflected by that method. [44]

However, the Opposition Division of Howard Florey/Relaxin refused the request of the opponent to undertake a referendum to ascertain what would be patentable in the opinion of the public in Contract States since recognising that the EPO is not the right institution to decide on fundamental ethical questions; and said “if they felt that such a survey might assist their case, it was up to them to carry it out”. [45] It can be interpreted that the Division was “prepared to accept” [46] the evidence of public opinion if there is an “overwhelming consensus” [47] contrary to what the Technical Board did in PGS.

Regarding to the assessment, as briefly mentioned in the above two cases, there is no consensus. At the moment, there are mainly two methods, one is “surveys and opinion polls”; the other is the “current practice” [48] which means in order to judge whether the public opinion accept a certain thing it is necessary exam whether the procedure or alike has already been adopted within current practice. There are both problems inherently [49] , and more importantly, a universally accepted approach is not formed, a further uncertainty and confusion is unavoidable.

IV.Construing Broadly or Narrowly

In order to answer the question

how to construe the morality provision, it is first necessary to clarify the right role of morality provision. It is universally accepted that a patent right is only a “negative right” [50] . A proprietor would not be deprived of a right of exploitation by patent law since patents never grant the proprietor any exploitation right. The role of patent law is merely to ensure the patent will not be utilized by third parties without the consent of the holder. Accordingly, denying an invention due to its immoral aspect means everyone can utilize this invention freely. This means that the morality provision cannot prevent any exploitation of the so called immoral inventions. Rather, it can merely reject the exclusively exploratory right of the “proprietor”. Not to mention that it is not a difficult task to find a way round the patent law such as trade secrecy. Therefore, it should let other laws and regulations to be a controller not patent law. Just as Warren-Jones [51] emphasized that the function of the morality provision is to be an “initial filtering mechanism” and should no longer take a “fundamental regulatory role” of new inventions.

It is also worth mentioning that one significant aspect of patent law is to encourage new inventions before answering what is the r