Can you patent something illegal?

Under the European Patent Convention (EPC), patents are granted for inventions that are new, involve an inventive step and are susceptible of industrial application. The EPC also contains a limited number of exceptions to patentability. One of these applies to inventions whose commercial exploitation would be contrary to ordre public or morality.

Significantly, the EPC expressly provides that an invention is not excluded from patentability solely because its exploitation is prohibited by law or regulation. In other words, the mere fact that an invention is illegal to make, sell or use under certain circumstances does not automatically mean that it cannot be patented.

This naturally raises the next question: when is an invention considered to be contrary to morality?

Over the years, the case law of the European Patent Office has clarified that this exception is reserved for inventions whose commercial exploitation would be seriously contrary to the generally accepted moral standards and values of European society. While this provides some guidance, it also leaves room for interpretation. After all, what exactly are generally accepted moral standards? And are they the same across all European countries?

An important aspect that is often overlooked is that many inventions associated with illegal activities also have entirely legitimate applications. In such cases, the exception based on morality will generally not apply.

Take, for example, the synthesis of controlled narcotic substances. Manufacturing, selling or possessing such substances without the required licence is prohibited in most countries. However, the very same substances may legally be produced and used under licence for purposes such as pharmaceutical manufacturing, scientific research or forensic analysis. As a result, an improved synthesis route, a more efficient purification process or a novel pharmaceutical formulation of such substances may, in principle, be patentable, provided that the other requirements for patentability are also met.

This illustrates an important distinction in patent law. A patent does not grant permission to make, use or sell an invention. Rather, it confers the exclusive right to prevent others from commercially exploiting the patented invention. Whether an invention may actually be exploited remains subject to the applicable laws and regulations.

The answer is therefore less black and white than many people expect. The fact that an invention may have an illegal application does not necessarily prevent it from being patented, provided that the invention itself falls within the boundaries of European patent law.

Want to know more?

Please contact Blijke Kroezen.