Controversy surrounding the patentability of biotechnological inventions

Dariusz Kasprzycki - doktor, Katedra Prawa Własności Intelektualnej Wydziału Prawa i Administracji Uniwersytetu Jagiellońskiego.In this article the patentability of biotechnological invention is discussed focusing on some controversies still arising in that area. Beginning from a few landmark decisions permitting broad patenting of biotechnological inventions both in Europe and USA (albeit not issued concurrently) the answer for the patentability of living organisms has been made obvious. The assessment should no longer rely on the distinction that the subject matter of the invention is alive. The above has confirmed the biotechnology directive enacted in 1998. The directive should not be perceived as the sufficient tool for regulation of patentability of biotechnological invention. In the last ten years patent offices across the world are facing several important questions regarding more specific interpretation of the requirements of patentability in that context. The article shows how the concept of novelty, inventive step (non-obviousness) and industrial capability is understood in the field of biotechnology, with particular focus on gene patents. Also the line between invention and discovery is commented. As a separate issue, the exclusion from patentability due to contradiction with morality principles is briefly introduced.Uniwersytet Jagielloński145-15