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This paper responds to a chapter by Professor Ted Sichelman in which he criticizes the conceptual apparatus developed by the US courts for applying the natural phenomena exclusion from US patentability on the ground that it fails “to promote the progress of science and useful arts” as the US constitutional clause granting federal patent authority requires. The focus of the response is the problem which Sichelman’s analysis underlines for European law concerning the appropriate method for establishing the limits of European patentability. In the argument made, European patent law is a crowded house in which “substantive convergence” around principles is inevitable but unsatisfactory: it will generally be the product of complex institutional dynamics as much as principled policy making, and in the absence of unified methodology and values will fail to ensure coherence or consistency within the European patent system. ...
The foundational principles of European patentability are contained in the Convention on the Unification of Certain Points of Substantive Law on Patents for Inventions (S.P.C.), on which the Convention on the Grant of European Patents (E.P.C.) is also based. Article 1 S.P.C. establishes the obligation of Contracting States to grant patents “for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.” Article 2 S.P.C. creates exceptions to this for “inventions the publication or exploitation of which would be contrary to ordre public or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by a law or regulation”, and “plant or animal varieties or essentially biological processes for the production of plants or animals” excluding “micro-biological processes and the products thereof”. Both provisions have an E.P.C. counterpart – Article 1 S.P.C. in Article 52(1) E.P.C., and Article 2 S.P.C. in Article 53(a) and (b) – the only differences of current importance being that Article 52(2) E.P.C. defines an “invention” within the meaning of Article 52(1) to exclude “discoveries ... as such” (among other things), and that Article 53(a) E.P.C. clarifies that an invention is not to be excluded from patentability on order public or morality grounds “merely because it is prohibited by law or regulation in some or all of the Contracting States” (emphasis added).
European patent law is an increasingly crowded house with no clearly defined boundaries and no clear hierarchy of legal norms. As mentioned above, its foundational legislative instruments are the S.P.C. and E.P.C., both of which are the products of intergovernmental agreements negotiated over a period of more than 20 years by the Council of Europe, the European Economic Community and two specially-convened diplomatic conferences. The E.P.C. is of particular importance due to its creation of a system for the grant of European patents and the E.P.O. to administer it. It was concluded in 1973 and later revised several times, including to incorporate the Biotech Directive. Consistent with the nature of a “European patent” as a bundle of national (E.P.C. Member State) patents, it is implemented and supplemented by those States’ national laws, at least some of which must be interpreted consistently with the Boards’ interpretation of the E.P.C. By its incorporation of the Biotech Directive, it is also the subject of EU jurisprudence, including decisions of the C.J.E.U., which take constitutional priority over decisions of national courts and the E.P.O. in all EU Member States, but which are not binding on the E.P.O. as a non-EU entity. Finally, and by its concern with property and other “fundamental rights”, it is the subject of decisions of the European Court of Human Rights, which, while not formally binding, are recognized as an important source of human rights jurisprudence, and the starting point for interpretation of the Charter.