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NCCR IP9 WORKSHOP 17 th May 2006 Scope of Patent Rights By Aida Dolotbaeva

NCCR IP9 WORKSHOP 17 th May 2006 Scope of Patent Rights By Aida Dolotbaeva. Issues. Scope of protection for biotechnological inventions; The scope and nature of the research / experimental use exemption; Is there any need to introduce farmer ’s privilege into Patent Law?.

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NCCR IP9 WORKSHOP 17 th May 2006 Scope of Patent Rights By Aida Dolotbaeva

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  1. NCCR IP9 WORKSHOP 17th May 2006 Scope of Patent Rights By Aida Dolotbaeva

  2. Issues • Scope of protection for biotechnological inventions; • The scope and nature of the research/ experimental use exemption; • Is there any need to introduce farmer’s privilege into Patent Law?

  3. Scope of protection for biotechnological inventions EU Directive 98/44/EC • Article 8(1): “The protection conferred by a patent on a biological material possessing specific characteristics as a result of the invention shall extent to any biological material derived from that biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics”; • Article 8(2): The protection conferred by a patent on a process that enables a biological material to be produced possessing specific characteristics as a result of the invention shall extend to biological material directly obtained through that process and to any other biological material derived from the directly obtained biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics. • Article 9: “The protection conferred by a patent on a product containing or consisting of genetic information shall extend to all material, save as provided in Article 5(1), in which the product is incorporated and in which the genetic information is contained and performs its function.”

  4. Scope of protection for biotechnological inventions • Is such an ‘expansion’ of patent rights justified? • Is a minimal functional effect within the new host sufficient to extend the patent rights? What should be the contribution of the function in the next generation? • When should the patent right be ‘exhausted’? Where should protection end?

  5. The scope and nature of the research/ experimental use exemption • Different countries have different scope of the research exemption. • There have been calls for the clarification of research/experimental use exemption. • Do we need research exemption in the field of biotechnology? - to solve the issues of dependency, i.e. patent thicket and “tragedy of the anti- commons” (Heller and Eisenberg,1998)? - to allow experimentation to discover new functions of the patented DNA? • In relation to plant, should there be an equivalent research exemption under patent law as provided for by the sui generis system of protection of plant varieties?

  6. Is there any need to introduce farmer’s privilege into Patent Law? • To what extend do we need harmonization of the patent system and PVP in relation to the farmer’s privilege? • In what forum should that harmonization be undertaken? • What are the implications for farmers in developing countries which are highly dependent on seed-saving?

  7. Thank You Thank You for your attention.

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