Hostname: page-component-6bf8c574d5-r4mrb Total loading time: 0 Render date: 2025-03-09T22:06:17.073Z Has data issue: false hasContentIssue false
  • English
  • Français

Patents for plants and genes under the European Patent Convention

Published online by Cambridge University Press:  05 December 2011

Noel Byrne
Noel Byrne
Affiliation:
Intellectual Property Law Unit, Centre for Commercial Law Studies, Queen Mary & Westfield College, University of London, U.K.
Get access

Synopsis

The cost of patenting an invention should be incurred only where the patent is likely to give the inventor an economic or a tactical advantage. Where it is practicable, secrecy may be preferable to patenting. If an advantage from patenting can be envisaged, then in Western Europe the inventor can apply either for a European patent under the European Patent Convention or for a national patent. The inventor in plant biotechnology faces a ban on patenting certain inventions, including plant varieties and essentially biological processes for the production of plants. But since this ban is interpreted strictly, there are opportunities for patenting what at first glance might seem not patentable. A patent application must give a written description of the invention that is complete enough for a skilled person to reproduce it. The inventor may be required to supplement the description in a patent specification for a biotechnological invention, by depositing a sample of relevant biological materials. A European patent is treated as a national patent in the country for which it was granted. Since a patent may be invalidated in enforcement proceedings, patenting may turn out to have been a costly mistake.

Type
Research Article
Information
Proceedings of the Royal Society of Edinburgh, Section B: Biological Sciences , Volume 99 , Issue 3-4: Opportunities and Problems in Plant Biotechnology , 1992 , pp. 141 - 152
Copyright
Copyright © Royal Society of Edinburgh 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Chakrabarty, Diamond v. [1980] 447 United States 303. (It is customary in Anglo-American law, when citing a case as legal authority for a point or statement, to give the name of the parties to the case, the year in which the case was decided, the volume number (if any) of the law reports where the judgment of the court may be found, and the page in the reports where the judgment begins.)Google Scholar
2. Giddings, Franklin v. [1978] Queensland Reports 72.Google Scholar
3. GENENTECH's Patent [1989] Reports of Patent Cases 613.Google Scholar
4. LUBRIZOL's Application [1990] Official Journal of European Patent Office 71.Google Scholar
5. CIBA-GEIGY's Application [1984] Official Journal of European Patent Office 112.Google Scholar
6. ONCO-MOUSE/HARVARD's Application [1990] Official Journal of European Patent Office 476.Google Scholar
7. See note 4 supra.Google Scholar
8. [1954] 71 Reports of Patent Cases 190.Google Scholar
9. [1954] 71 Reports of Patent Cases 192.Google Scholar
10. [1962] 301 Federal Reports (2nd Series) 929.Google Scholar
11. See GENENTECH, note 3 supra.Google Scholar
12. See note 3 supra.Google Scholar
13. At present, the plant breeder must apply to the national breeders' rights office in each of the UPOV countries where protection is required. There is no international system for filing applications.Google Scholar
14. Even the botanical description of a variety prepared by the breeders' rights authority after the variety has passed the d.u.s. tests for the grant of breeders' rights, would be regarded as incomplete for patent purposes.Google Scholar
15. As at December 1991, the draft Directive was still under discussion at the European Parliament.Google Scholar