Dutfield, Graham --- "Patent Law, the Emerging Biotechnologies and the Role of Language in Subject-Matter Expansionism" [2012] ELECD 134; in Rimmer, Matthew; McLennan, Alison (eds), "Intellectual Property and Emerging Technologies" (Edward Elgar Publishing, 2012)

Book Title: Intellectual Property and Emerging Technologies

Editor(s): Rimmer, Matthew; McLennan, Alison

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802468

Section: Chapter 4

Section Title: Patent Law, the Emerging Biotechnologies and the Role of Language in Subject-Matter Expansionism

Author(s): Dutfield, Graham

Number of pages: 14

Extract:

4. Patent law, the emerging
biotechnologies and the role of
language in subject-matter
expansionism
Graham Dutfield

This short chapter is about science, patent law and the use of language that
supports the extension of patent claims ever deeper into the realms of
nature. By language I refer in particular to the use of figures of speech,
terminologies and epistemologies that both express and support powerful
explanatory and justificatory conceptual systems. Undoubtedly, chemical,
informational and mechanistic ways of understanding life have all been
enormously helpful to scientists, as are the metaphors and analogies that
frame their verbal and written forms of expression. The point of the
chapter is not to undermine them but to examine critically what implica-
tions they have for patent law and policy, in particular their consequences
for the positioning of boundaries between the patentable and the unpatent-
able.
From the mid nineteenth century, patents were regularly being granted
on chemical substances in those countries, like the United States, the
United Kingdom and France, that had no statutory chemical exclusions.1
In the early twentieth century, patents claiming isolated and purified
natural compounds were allowed or else found by courts to constitute
acceptable subject matter. Since the 1970s an increasing number of jurisdic-
tions have granted patents on micro-organisms, cell cultures, seeds, plants,
animals and genes. Patenting in the life sciences is often criticised for
inappropriate expansionism.
I would argue that some but not all such criticisms are justified, not least
because the application of what ...