Biotech Patents
Biotech Patents: Equivalency and Exclusions Under European and U.S. Patent Law Li Westerlund,
Publisher: Kluwer Academic Publishers
ISBN: 9041188835
Edition: Hardcover; 2002-07-15
Summary:
There is no denying that biotechnological inventions in some ways
have challenged the legal system of providing market exclusivity
through patents. First of all, their patentability has been
questioned. Furthermore, the scope of protection conferred to these
inventions is obscured because of the difficulty of applying legal
concepts to complex biological phenomena. It is a recurrent question
whether the legal solutions embedded in the patent system in an
aggressive market correctly reflect inventors' contribution to the
art, thus balancing the conflicting interests in an appropriate
manner. When it comes to inventions in the biotechnological field,
the requirements that a patent cannot be granted without the
invention being disclosed, together with protection against
equivalent solutions, raise practical problems, making the clash
between technological reality and the legal frameworks evident. This
book discusses patent legal issues regarding inventions in the field
of biotechnology. The scope of a patent is of central concern, and
since biotechnology is very different from other technologies, the
requirements for disclosure and infringement are in focus.
Eligibility issues are touched upon, although from more of an
explanatory perspective, since the law is settled in this respect.
The material for the analyses includes the European practices under
the EPC, those of the United Kingdom, Germany, and the US. The
mandated exclusions from patentability under the European patent laws
of categories of plant and animal subject matter and certain
biological processes are also analysed. Claim interpretation is the
common theme. The challenge has been to present a comprehensive basis
for grasping the substantive law for the field of biotechnology. The
book examines thoroughly the differences between practices, and the
consequences of those differences for the possibility of being
granted a patent for an invention, and the infringement doctrines'
effects for what might be called a patent's `after-life', i.e. the
scope of its protection. As for the exclusions from patentability in
Europe, the study reveals an inherent inconsistency in article 53(b)
EPC, warranting an adjusted and more patent-legal understanding of
the concepts. The principal message emerging in this book is the
importance of relying on the policy arguments of uniformity and
predictability in order to preserve a fair balance between an
inventor and third parties, since in reality much of the controversy
in this field turns on proper protection.
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