Patent Law

Patent Law

This assignment will discuss the statement, “Capability of industrial application will in the era of biotechnology become an important criterion to restrict the grant of biotechnology patents that easily satisfy the criteria of novelty and inventive step. This development will in turn counterbalance broad scope of protection that is awarded to these patents once granted.”

Introduction

Patenting of biotechnological inventions has become increasingly important in the knowledge-based economy.  Biotechnological research and developments involve an increasing amount of time, money and energy.  Patent protection encourages research and allows inventors to profit from their inventions.  This economic and intellectual investment has made the relationship between intellectual property right and biotechnological inventions an issue of immediate interest.

The rules and regulations governing biotechnological patents are usually national based.  Each country has set its own standards for granting biotechnological patents.  Some countries apply stricter standards than others regarding the patentability of biotechnological inventions.  Generally, to be granted a patent in the US, an invention has to be new, non-obvious and useful. In Europe, the basic requirements for a patentable invention are novelty, inventive step and industrial application. Although the novel aspect and the industrial application (or utility) are easier to identify, the law on inventive step in Europe is seen as a greater hurdle than the equivalent law (non-obviousness) in US, and has attracted more controversy. The distinction between discovery, which is not patentable under European law, and a patentable biotechnological invention, is often difficult to make and can add an ethical dimension and ordre public.

Therefore, the purpose of this paper is to analyze the inventive step in patentability of biotechnological inventions under European patent law together with national practices and compare it with such regulations in US. In a first part, the paper looks at the general theory of patentability of inventions with the focus of inventive step and relation between patent and biotechnological invention. After looking at the general framework conditions, the inventive step in patentability of biotechnology in European patent law is investigated and compared with US legislation, and then cases in UK and Italy will be considered. Finally, some conclusions are drawn to summarize the paper.

The method of this paper is combination of analytical and comparative methods. The literatures have been used from sources of European Patent Office (EPO), national Patent Offices and other monographs concerned.

Despite of great efforts of author, there may be inadequacies. All constructive comments are welcomed and appreciated.

Patent Law and Biotechnological Inventions

There have been many debates and controversies relating to the issue whether or not it is appropriate to patent biotechnological inventions and which kinds of biotechnological inventions are patentable. Some arguments have been raised against biotechnological inventions concerning morality, ownership and commercialization of life, exploitation of country's resources and indigenous people's concern. However, many factors justify their patentability such as biotechnology contributes to medical treatment, may increase human welfare and may have positive environmental effects, etc. Besides, the development of biotechnology and the creation of new organisms with useful and specific industrial application have challenged the ...