13 J. World Intell. Prop. 1 (2010)

handle is hein.journals/jwip13 and id is 1 raw text is: 

                          The Journal of World Intellectual Property (2010) Vol. 13, no. 1, pp. 1-23
                                                    do: 10.111 1/j.1747-1796.2009.00387.x

Is  the Non-Patentability of Essentially

Biological Processes Under Threat?

Sigrid Sterckx
Vrije Universiteit Brussel, Universiteit Gent and Fund for Scientific Research Flanders




Under article 53(b) of the European Patent Convention (EPC), European patents cannot be
granted for essentially biological processes for the production of plants. Unlike the
International Convention for the Protection of New Varieties of Plants, the EPC contains
no provisions which protect farmers from claims of infringement and, thus, the grant of
patents potentially constrain a farmer's normal acttions of planting and harvesting crops
using legitimately acquired seed. In practice, interpretation of the exclusion of essentially
biological processes raises a whole variety of problems, not least the question as to whether
involvement by man or machine in a process will take that process out from the relam of the
essentially biological. From the travaux preparatories of the EPC, and from the use of the
term essentially, it is clear that involvement by man or machine is not in itself enough to
deny patentability. In this article, we develop the argument that the timing of the involvement
rather than its impact alone, is of critical importance. We also comment on two cases which
are currently under consideration by the highest instance of the European Patent Office.
Keywords  Europe; patentability; biological processes


A patent allows the patent owner to stop others from using the patented product or
process or the direct product of a patented process. Patents are useful to help an
inventor to secure the investment necessary to take an idea through to a product on
the market  and, as a result, should not be dismissed out of hand as an unnecessary
and undesirable barrier to free trade. Yet, patents grant monopolies and should be
viewed  as a necessary evil, to be constrained to operate only to the extent that is
required to obtain the social benefits that patents are intended to achieve.
    As  this article will try to explain, the principle of the non-patentability of
essentially biological processes, which is laid down in the European Patent Conven-
tion (EPC),  is currently under threat and this may have far-reaching consequences
for agriculture and thus for food  security. Hence, the questions as to what is an
essentially biological process, why essentially biological processes ought to be
excluded from  patentability, and how this exclusion must be interpreted,2 are very
pertinent, not only for lawyers but also for ethicists, farmers and the public at large.
    The  EPC,  which  governs  the issue of patents for most  European  countries,
states in article 53(b) that:

      European  patents shall not be granted in respect of . . . plant ... varieties
      or essentially biological processes for the production of plants . . . (EPC,
      2007, pp. 81-2)


 2009 Blackwell Publishing Ltd


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