Q178 draft report.pdf - SFIR

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morality may not be patented under the EPC. However, ethical
considerations do – and should – play a larger role outside the narrow
field of patent issues. Nevertheless, many feel that it is wrong to allow
for exclusive rights to biological material of human origin. For instance,
the debate concerning patenting of human genes is ongoing in
Sweden, involving political, legal and ethical experts, but consensus is
not easily reached.
The Swedish Group is of the opinion that there is a lack of knowledge
and misunderstandings with the public on what exactly a patent right is.
These misunderstandings could in the long run pose a threat to the
existence of patent rights in biotechnology, as public perceptions
influences the political decisions.
The exceptions from patentability under the EPC are not clear. The
case law of the Boards of Appeal at the European Patent Office (EPO)
shows that the legal rules are difficult to implement in practice. This is
evident concerning the exceptions for plant varieties and inventions
contrary to ordre public and morality. The lack of clarity as to what
should be patentable and not causes problems of interpretation. See
supra question 2.3.
2. Practice of the patent granting authorities
2.1 What is the definition of patentable subject matter in your
jurisdiction?
European patent law is harmonized as to the granting of patents.
Patent protection in Sweden is regulated in the Swedish Patents Act
and the Patents Decree. Sweden, as a member of the EPC, has
implemented the convention’s requirements on patentability in the
Swedish legislation. Thus, the case law of the EPO Boards of Appeal
serves as a standard for interpreting Swedish law. The EU Directive
98/44 on the protection of biotechnological inventions (The Biotech
Directive) aims to establish some clarifications in the field of
biotechnology patents. The work of implementation of the Directive in
Swedish legislation is currently taking place (September 2003).
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