Intellectual Property, Morality, and Public Policy/Ordre Public: Proposing a Public Interest Approach for Patent and Trade Mark Regulation in Europe

The current approach to examining European patents and EU trade marks on the basis of morality and public policy/ordre public is a practice which is fraught with inconsistencies. Not only is the does the interpretation of these vague concepts vary on a case-by-case basis, but the methodology for applying the law can also be seen to differ from one examiner to the next. This has resulted in an incoherent body of case law, creating a lack of transparency for intellectual property practitioners and applicants alike. Using an interdisciplinary methodology which combines a socio-legal approach with the social science methodology of Thematic Analysis, this research focuses on four categories of data: first, the key decisions of the CJEU are analysed and this analysis is contrasted with the Advocate General Opinions, the submissions of the parties to the cases, and third party observations; second and third, the examination decisions of the European Patent Office (EPO) and the EU Intellectual Property Office (EUIPO) have been analysed; and fourth, interview data collected from stakeholders in the field is analysed to give a “bottom-up" perspective on the legal provisions in practice. The coding of this data, using Braun and Clarke’s Thematic Analysis, has highlighted the extent of the inconsistencies in decision making, as well as a lack of clarity regarding who or what is influencing the jurisprudence in this area. It also demonstrates the frustrations of practitioners in this area, and the lack of opportunity for involvement of these stakeholders in the review of legislation and guidelines before now. This thesis presents a revised approach to regulating patents and trade marks, proposing a “public interest” standard. Guidance for the consistent and objective interpretation and application of this new standard is also needed, and so interpretive guidelines and a methodology for examiners is recommended. Furthermore, the role of the EPO and EUIPO within the broader regulatory framework is also acknowledged. The current situation where the EPO and EUIPO are siloed off from other relevant regulatory bodies has resulted in decisions which do not reflect the oppositions being raised against problematic intellectual property applications. Greater dialogue between these Offices and other relevant regulatory agencies will be paramount in ensuring that public interests are adequately met.