Q178 draft report.pdf - SFIR

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The Swedish Group believes that the reason behind this exemption is
the idea that the ethical and moral principles recognised of the
countries in Europe should be prevalent and supplement the standard
legal examinations in patent law. The provision is only limited to
inventions of such a nature that they cannot at all be used in a moral or
legal way. Within the field of biotechnology, it has been emphasised
that this rule should be interpreted as to protect human, animal or plant
life, for example to prevent the patenting of processes whose use
would offend against human dignity.
* Plant or animal varieties.
* Essentially biological processes for the production of plants of
animals.
The Swedish Group understands that the exclusion of plant and animal
varieties as well as essentially biological processes for the production
of plants and animals from patentability originates from the historical
division between macro- and microbiology in patent law, and the
development of a separate sui generis protection system for plant
varieties as products of traditional breeding processes (The Plant
Variety Protection System). At the time of enactment of the EPC, a
distinction between macro- and microbiology was quite natural.
Microbiological processes such as fermentation had been used in
industry for a long time, and the knowledge of microbiological
substances such as for example antibiotics was nothing new. Plants
and animals were traditionally bred by crossing and selection.
The Swedish Group believes that the advent of biotechnology research
has changed the prerequisites for this exclusion. Biotechnology
processes are from a patent law perspective regarded as technical,
and thereby possible to patent, notwithstanding the fact that naturally
occurring material and processes are being used. Thus, the distinction
between macro- and microbiology is no longer upheld, resulting in
historical exclusions with no real basis in a modern patent system.
3. What is the effect of this definition on activities concerning
patent protection?
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