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It is only recently that the EPO’s Boards of Appeal have had to deal with appeals relating to the surge of AI based inventions. In doing so the Boards of Appeal have adopted a gradualist approach, adapting the extensive EPO case law relating to the patentability of computer programs ‘as such’ and applying it to AI inventions. The most recent change to the Guidelines indicates the EPO’s willingness to adapt to technological developments and to refine its approach to patentability of inventions involving AI, while at the same time taking a firm line against patenting non-technical inventions.
Institutional theories examine shared understandings or ways of doing things which can become engrained over time, developing into interpretative patterns within decision-making frameworks. Similarly, certain concepts within law can become imbued within a body of past practice, which can make legal change difficult to achieve. In some cases, even when legal change is suggested, practice within a field may be drawn back to historical institutional understandings. This chapter focuses on the European Patent Office (EPO)’s approach to interpreting morality provisions for biotechnological inventions, to highlight how traditional conceptions of the limited role of ethics within patent law have become engrained in EPO practice. Even though biotechnologies have advanced, and their patentability poses heightened ethical concerns, the interpretative communities within patent law have remained static. Thus, engrained institutional understandings of the limited role of ethics within patent law continue to dominate. This can encumber decision-making and, especially in areas of rapid technological and societal change, weaken the law’s responsiveness, which warrants much greater examination.
Article 53 of the European Patent Convention prohibits the grant of patents for plant or animal varieties and for inventions whose commercial exploitation would be contrary to ordre public or morality. These provisions are therefore both criteria for the grant of patents and grounds for opposing granted patents. The interpretation of these provisions and their application to particular cases lies ultimately in the hands of the Boards of Appeal of the European Patent Office which have considered both patent applications and oppositions against granted patents on these grounds. This chapter begins with a summary of the law, the procedure for opposing patents on these grounds and the principal decisions in this field. It then reviews the manner in which opponents of patents other than commercial parties – such as pressure groups, political parties and churches – have organised themselves as opponents. Lastly, it considers how these non-commercial opponents have conducted their cases, their degree of success, whether they could do more to question the grant of life form patents – and whether, as the author considers they should, churches and other organisations with ethical credentials should actively question life form patents.
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