About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

27 Biotechnology L. Rep. 1 (2008)

handle is hein.journals/bothnl27 and id is 1 raw text is: 27 Biotechnology Law Report 1
Number 1 (February 2008)
© Mary Ann Liebert, Inc.
DOI: 10.1089/bir.2008.9991
Paper
Patenting Neem and Hoodia: Conflicting Decisions
Issued by the Opposition Board of the
European Patent Office

KARI MOYER-HENRY, Ph.D.*

Note: In our previous issue, we examined two possible biopiracy issues from the viewpoint of a Eu-
ropean patent attorney. In this issue, we take a look at the cases from a different perspective.

BIOPIRACY IS A SERIOUS ISSUE that has plagued both
the biotechnology industry and intellectual prop-
erty law. Part of the problem is the difference in patent
regulations in the United States (US) and the Euro-
pean Union (EU). The European Patent Office over-
sees intellectual property rights in many developing
countries that are members of the European Patent Or-
ganization.1 Despite recent efforts to establish inter-
national regulations on the acquisition and use of in-
digenous materials by biotechnology companies, there
is a general lack of consensus regarding the best way
to address the issues of biopiracy.
This paper first addresses the background of
biopiracy, with a brief summary of US patent law. The
next section introduces the European Patent Office, its
regulations for granting patents, and the EPO's posi-
tion on biotechnology. I then discuss the Neem patent
controversy and the more quickly resolved Hoodia
case. Finally, I address the conflicting decisions passed
by the EPO and the implications of those decisions on
the future of biotechnology.

BACKGROUND

Biopiracy
Biopiracy is a term of art in the fields of biotech-
nology, pharmaceuticals, and intellectual property law
* Kari Moyer-Henry, Ph.D., is a student at California Western
School of Law.

meaning the commercial development of naturally
occurring biological materials, such as plant sub-
stances or genetic cell lines, by a technologically ad-
vanced country or organization without fair compen-
sation to the peoples or nations in whose territory the
materials were originally discovered.2 The term has
gained popularity in use only over the past decade.3
Prior to that, research expeditions occurred regularly
with the purpose of finding, collecting, and making
use of the rich abundance of biological diversity world-
wide with little to no legal repercussions.4
The expeditions funded by pharmaceutical compa-
nies are in no way undertaken for the simple goal of
expanding knowledge of the unknown. Nor are they
intended to satisfy the researcher's innate desire for
learning. The entire purpose of these expeditions is to
acquire as much local knowledge of traditional bio-
logical applications and collect genetic samples from
plants, animals and humans for later use in product re-
search and development.5 The controversy stems
from the multinational companies accumulating huge
benefits while basically forgetting to share any of the
profits with the countries providing the resources.6
i www.epo.org/about-us.html (last visited Jan. 2, 2008).
2 www.answers.com/topic/biopiracy (last visited Jan. 3, 2008).
3 Michael A. Gollin, Biopiracy: The Legal Perspective; avail-
able at www.actionbioscience.org/biodiversity/gollin.html.
4 Id.
s Emily Marden, The Neem Tree patent: international conflict
over the commodification of life, 22 B.C. Int'l. & Comp. L.
Rev. 279, 279 (1999).
6 Id.

1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most