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The European Patent Office in Munich is already receiving hate mail
from religious zealots who believe the office should not even consider granting
to Harvard University on a mouse genetically engineered to be more susceptible
to cancerous tumours.

In July the EPO’s Examining Division refused Harvard’s patent application
(169 672) on the so-called oncomouse. The examiners referred to the article
of the European Patent Convention excluding animal varieties. Examiners
also referredto another article which excludes inventions contrary to ‘ordre
public’ on morality.

Earlier this month the EPO’s Board of Appeal decided there were ‘Compelling
reasons’ why the examiners must address the moral issues, comparing the
suffering of animals and possible risks to the environment against the invention’s
usefulness to humantiy. The board also decided that although the different
language versions of the patent convention can be interpreted differently,
none unambiguously bars all patents on all animals (This Week, 20 October).

Paul Braedli, President of the EPO, believes it is right for the case
to be re-examined. ‘There is fear in the air,’ says Braedli. ‘People think
it is a step towards patenting humans. And the decision will affect the
free use of other inventions, for instance in agriculture. It is important
to remember that if the Appeal Board rejects a patent, then that is the
end of the story for the applicant. There is no national court of appeal.
But if the patent is granted, competitors can later attack the patent in
national courts. There may even be a different decision in different countries.

Joseph Straus, professor at the Max Planck Institute for Intellectual
Property Law in Munich, believes the EPO must decide on points of law, not
morals. ‘You can buy, sell, owe, own, kill and eat animals. So there really
is no general legal obstacle to patenting them. There may be specific and
moral reasons and you may prohibit specific uses. But that is not a matter
for patent law.’