T 149/11 – Slavery

This is an appeal against the rejection of the opposition against the patent under consideration.

Independent claim 13 of the main request (as granted) read as follows:

13. Device for processing a slaughtering object, such as a slaughtered animal or part thereof, in a slaughter line of a slaughterhouse, the device comprising:

at least one conveyor with carriers, each for the purpose of carrying the slaughtering object, an identification being assigned to each carrier or associated slaughtering object;

means for performing at least one processing step on the slaughtered object;

at least one observer positioned along the slaughter line for the purpose of performing one or more observations on the slaughtering object;

an input station (11b) for the observer to input data relating to at least one observation on the slaughtering object;

a data-processing system (5) for processing the data input by means of the input station (11b), in order to determine a test result for the slaughtering object, which test result comprises an approval or rejection, and for storing the test result in conjunction with the corresponding identification;

at least one automatic discharging device (6a; 13a, 18a, 22; 26a), which is disposed downstream of the observer along the slaughter line and has at least a first discharge for removing the slaughtering object, if the said object has been approved, and has a second discharge for removing the slaughtering object, if the said object has been rejected;

an identification reading system (12a), which interacts with the discharging device (6a; 13a, 18a, 22; 26a), for reading out the identification belonging to the slaughtering object supplied to the discharging device or the associated carrier;

the choice of the first or the second discharge of the discharging device by the data-processing system (5) being controlled on the basis of the test result stored therein and belonging to the identification read out by the identification reading system (12a),

characterized by

means returning the slaughtered object removed via the second discharge to an upstream point in the slaughter process for repeating at least part of the processing step on the slaughtering object. (my emphasis)

The Board found this claim to be excluded from patentability under A 53(a):

[2.1] Pursuant to A 53(a), a patent cannot be granted in respect of inventions the commercial exploitation of which would be contrary to public order. However, a commercial exploitation shall not be deemed to be contrary to public order merely because it is prohibited by law or regulation in some or all of the Contracting States. Thus it needs to be examined if an exploitation of the claimed invention - i.e. not the invention itself - would be contrary to public order (“ordre public”) per se., i.e. apart from any special legislation restricting its commercial exploitation.

[2.2] Claims 13 and 14 of the main request contain the following feature:

- at least one observer positioned along the slaughter line for the purpose of performing one or more observations on the slaughtering object.

[2.3] According to the patentee, it should be obvious that the observer as such is not part of the claim. Applying the general rules on the interpretation of claims, the Board is not convinced by this position. In general, claims must be read with a mind willing to understand, and in a manner that does not render the claims illogical or devoid of technical sense. The patentee does not dispute that the above feature is clear in itself and gives the claim a clear technical meaning. He argues, though, that while the observer is necessary to carry out this non-automatic embodiment of the invention that underlies claims 13 and 14, the observer cannot reasonably be considered part of the invention as defined in those claims.

In the opinion of the Board, if an observer should not be part of the claimed invention, the claim should and could have been worded correspondingly. Given the clear wording of the claim, and the fact that such wording makes technical sense, the Board finds that the claim must be interpreted as including at least one observer.

[2.4] According to the [opponent], by including the observer as an integral part of the invention defined in these claims, its commercial exploitation contravenes basic human right and is thus contrary to “ordre public”, so that the claimed invention is subject to the exception of A 53(a).

[2.5] The Board considers that “ordre public” must be seen in particular as defined by norms that safeguard fundamental values and rights such as the inviolability of human dignity and the right of life and physical integrity. See also Singer/Stauder, Europäisches Patentübereinkommen, 6th ed. 2013, Art. 53 note 7, opining that human and civil rights, such as those guaranteed by international treaties and national constitutions, are to be regarded as the principal foundations of the legal order of the contracting states, and as such also the foundations of “ordre public”. Fundamental rights and freedoms that underpin “ordre public” are codified in Articles 4 and 5 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950), according to which no one should be held in slavery, and everyone has the right to liberty and shall be deprived thereof only under certain circumstances. This corresponds to the human right of integrity, the prohibition of slavery and the right to liberty under the Charter of Fundamental Rights of the European Union (Official Journal of the European Communities C 364/1 of 18 December 2000), Articles 3 to 6.  

Since patents are instruments of private property and as such freely transferable, a patent for an invention that includes one or more human beings among its features gives rise to serious concerns as to these fundamental rights and freedoms of the particular human beings that would be the subject of such a patent when commercialized, however far-fetched such an interpretation may seem. These serious concerns regarding human liberty and the prohibition of slavery lead the Board to conclude that claims 13 and 14 of the main request contravene A 53(a).

[2.6] The Board emphasises that it is not relevant for this finding whether for the time being there exists any serious reality of infringing the human rights of the claimed observer, either as being treated as an “object of private property” or is some other manner. The prohibition of patenting with reference to the “ordre public” is neither intended nor suitable for effectively restricting acts seen as being contrary to “ordre public” (or morality). Rather, it is a question of principle, which seeks to safeguard the public trust in the patent system as a whole. This public trust would erode if the broader public outside of the patent profession would perceive that a morally unacceptable condition – here the ownership of a human being –  somehow acquires official approval through the seal of the granted patent document (see also Singer/Stauder, Europäisches Patentübereinkommen, 6th ed. 2013, Art. 53 note 13). For this reason, it is not relevant that the proprietor is unlikely ever to enforce the disputed claim in the sense of its immediate wording, e.g. by demanding the delivery up (or possibly even destruction) of the claimed device, including the observer. It is sufficient that the immediate wording could potentially lead the broader public to believe that such a claim indeed covers a human being with all its legal consequences. The Board also makes reference to R 28 and 29, the legislative history of which equally illustrates that a possible interference with fundamental human rights may well support an unequivocal and strict exclusion from patenting of such “sensible” subject-matter.

[2.7] Accordingly, the main request must fail. Since claims 11 and 12 of auxiliary request 4, and claims 13 and 14 of auxiliary requests 5 and 6 likewise comprise an observer they must also fail for the same reasons.

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