Torremans, Paul L.C. --- "Patentability of Human Stem Cell or Synthetic Biology Based Inventions" [2011] ELECD 981; in Arezzo, Emanuela; Ghidini, Gustavo (eds), "Biotechnology and Software Patent Law" (Edward Elgar Publishing, 2011)

Book Title: Biotechnology and Software Patent Law

Editor(s): Arezzo, Emanuela; Ghidini, Gustavo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800402

Section: Chapter 11

Section Title: Patentability of Human Stem Cell or Synthetic Biology Based Inventions

Author(s): Torremans, Paul L.C.

Number of pages: 21

Extract:

11. Patentability of human stem cell or
synthetic biology based inventions
Paul L.C. Torremans

INTRODUCTION

This chapter looks at biotechnological patents and more specifically at
human stem cell patents and synthetic biology patents. But rather than
look at these patents from a science perspective it is proposed to look at
the challenges they pose and face in relation to patentability. Can human
stem cells and synthetic biology inventions be patented or do they face
serious problems when trying to meet the criterions for patentability? Are
they non-patentable subject matter and which role does morality play?
The starting point is clearly that living material is patentable. Article
27(1) TRIPS leaves no doubt about it and individual national patent law
regimes cannot avoid this conclusion.1 In Europe Article 5 of the Biotech
Directive2 confirms this by stating that human material in isolated form
is patentable.3 Let us therefore turn to the criterions for patentability and
examine the subject matter in more detail.


1 There are limitations though for those cases in which the DNA no longer

fulfils the function for which it was patented, see Monsanto v Cefetra, case
C-428/08, decision of the Grand Chamber of the Court of Justice of 6th July 2010,
available at curia.europa.eu (accessed May 2011), where it was held that: `Article
9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July
1998 on the legal protection of biotechnological inventions is to ...