oru.sePublikationer
Change search
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • harvard1
  • ieee
  • modern-language-association-8th-edition
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf
European harmonization regarding exclusions from patentability for plant and animal varieties
Örebro University, Department of Behavioural, Social and Legal Sciences.
Örebro University, Department of Behavioural, Social and Legal Sciences.
2006 (English)Independent thesis Basic level (degree of Bachelor), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

Patent law has during time evolved from industrial inventions to also include intellectual inventions. Patentability has as well changed with time. For technology to be patentable it must be considered to be a technical solution to a problem, and today genetic inventions are considered to be such a technical solution. From the beginning plants and animals were not considered as inventions; however, technology progress urged modifications of existing legislation to meet development progress within technology. European as well as international harmonization have been carried out in this field to ensure uniformity.

The exclusion from patentability for plant and animal varieties can be found in several sources of law; this study focuses on the exclusions in Article 4 of Directive 98/44/EC on the legal protection of biotechnological inventions, as well as in Article 53b of the European Patent Convention. After two specific cases from the European Patent Office the scope of the exclusion from patentability for plant and animal varieties was questioned. The two cases ONCO-mouse and Plant Genetic Systems had different outcomes, patent was granted in one case and not in the other; and that raised confusion as to the definition of plant and animal varieties, as both cases concerned genetic modification.

Although there is no clear definition of plant and animal varieties, case law provides guidance to a certain extent, the reasoning in the case law also gives guidance as to where the judiciary is heading in its interpretation. There is more legislation concerning plant varieties, and the definition of this term might be considered to be clearer. The general opinion seems to be that what is said about plant varieties should be applied mutatis mutandis to animal varieties, and vice versa, however this may be questionable in some cases. The lack of a clear definition of the terms plant and animal varieties might result in a lack of legal certainty in this field, as demonstrated by the questioning of the two contradicting cases mentioned above.

Rapid developments in the field of biotechnology imply that the patentability of plants and animals will be assessed on other grounds in the future. As biotechnology is an expanding area, the acceptance of new controversial inventions may occur on a more regular basis. Time will tell if this is the case.

Place, publisher, year, edition, pages
2006. , 31 p.
Keyword [en]
Patentability, european harmonization, exclusions
National Category
Law (excluding Law and Society)
Identifiers
URN: urn:nbn:se:oru:diva-483ISRN: ORU-BSR/RÄT-C--06/0002--SEOAI: oai:DiVA.org:oru-483DiVA: diva2:136866
Uppsok
samhälle/juridik
Supervisors
Examiners
Available from: 2006-05-29 Created: 2006-05-29

Open Access in DiVA

fulltext(126 kB)563 downloads
File information
File name FULLTEXT01.pdfFile size 126 kBChecksum SHA-1
7335443f1418c310b0f7a321cb6a00fecb5235c79e212b0174f28c83f85fadf86acdd3b1
Type fulltextMimetype application/pdf

By organisation
Department of Behavioural, Social and Legal Sciences
Law (excluding Law and Society)

Search outside of DiVA

GoogleGoogle Scholar
Total: 563 downloads
The number of downloads is the sum of all downloads of full texts. It may include eg previous versions that are now no longer available

Total: 331 hits
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • harvard1
  • ieee
  • modern-language-association-8th-edition
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf