THE PRINCIPLE OF GENERIC CONSISTENCY AS THE SUPREME PRINCIPLE OF HUMAN RIGHTS AND THE INTERPRETATION OF ORDRE PUBLIC AND MORALITY IN EU PATENT LAW

Abstract

This research explores how the Court of Justice of the European Union and European Patent Office should interpret the immorality exclusions to patentability, particularly of biotechnological inventions, through the lens of EU constitutional law. After analysing the application of previous and current balancing tests in hypothetical patent cases and historical decisions made by the organs of the European Patent Organization (EPO) and the Court of Justice of the European Union, the thesis proposes a concept-theoretic position for balancing competing rights under EU patent law. This framework is built around Alan Gewirth’s Principle of Generic Consistency (PGC). The thesis seeks to defend this framework by showing that it is not only applicable to current judicial decisions, but that it does no violence to the provisions of the European Patent Convention, the EU Biotechnology Directive and the European Convention on Human Rights, and is, indeed, applicable in any legal system committed to the universal principles of human rights. The framework is particularly useful in having the capacity to adjudicate conflicting rights. Apart from this adjudication, in line with a broad concept of morality, a co-operative model of the relationship between morality and patentability built upon the key idea that, although the two sets of values can come into conflict, they can also support each other. The thesis applies the concept-theoretic position to three separate contexts: the European patent system, the United States patent system, and on hypothetical cases which were never brought to the court. Using the ‘criterion of degree of needfulness for action’, the thesis successfully analyses balancing rights scenarios in a way which results in consistent and rational decisions.