This chapter advances the argument that religious and ethical reasoning have a role to play in policy debates about patent law, and also in some patent law cases. We begin at the most general level, by arguing that in democratic, pluralist societies, moral and religious argument have a legitimate contribution to make to public discourse tout court. We then make a case for the relevance of religious and moral deliberation for patent law in particular, given that inventions and new technologies that seek patent protection sometimes have significant repercussions for wider society, and patent protection is a way of encouraging and supporting their development. We also consider ways in which religion and ethics might be said to count as relevant evidence not only in patent policy debates, but also in patent proceedings. We address this against the background of the ‘politics of knowledge’ that has arisen in Europe and the United States, and include reference to the explicit immorality exclusion found in European patent legal systems. Given that the interpretation and application of the immorality exclusion has been controversial with lawyers, we finally propose an alternative, potentially more fruitful approach to the exclusion, treating it as a ‘policy lever’.

Article 53 of the European Patent Convention prohibits the grant of patents for plant or animal varieties and for inventions whose commercial exploitation would be contrary to ordre public or morality. These provisions are therefore both criteria for the grant of patents and grounds for opposing granted patents. The interpretation of these provisions and their application to particular cases lies ultimately in the hands of the Boards of Appeal of the European Patent Office which have considered both patent applications and oppositions against granted patents on these grounds. This chapter begins with a summary of the law, the procedure for opposing patents on these grounds and the principal decisions in this field. It then reviews the manner in which opponents of patents other than commercial parties – such as pressure groups, political parties and churches – have organised themselves as opponents. Lastly, it considers how these non-commercial opponents have conducted their cases, their degree of success, whether they could do more to question the grant of life form patents – and whether, as the author considers they should, churches and other organisations with ethical credentials should actively question life form patents.

Exclusions from patentable subject matter eligibility for scientific and natural discoveries and for abstract ideas were justified historically on religious, deontological and utilitarian moral grounds. This chapter briefly traces the history of such exclusions derived from the United Kingdom and transplanted to the United States. It then explains why such discoveries were to be treated in the United States as prior art against the applicant. Consequently, in order to claim a patent eligible “invention,” an applicant had to do more than merely apply his scientific, natural, or abstract discovery for practical benefit. Rather, the creative advance had to be in the application itself, rather than in the discovery it applied. This approach differs from that adopted in the United Kingdom and in Europe. The chapter concludes by discussing why the line between discovery and patent eligible invention matters morally and practically and will continue to be contested.