History and Past Activities
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History and Past Activities |
Dutfield, Graham
Herchel Smith Senior Research Fellow
Queen Mary Intellectual Property Research Institute
Queen Mary, University of London - g.m.dutfield@qmul.ac.uk
From Mousetraps to (Onco)mice: The Law and Politics of Biotech Patenting
It is frequently argued by critics that patents were only ever meant to protect mechanical devices, with mousetraps often cited as typical examples. According to such a view, the first animal patent, for the so-called ‘oncomouse’, was a seminal event taking patent law into uncharted territory. In fact, reasonable arguments can be made pro and contra this view, because it may plausibly be claimed that the extension of patent law to cover life-forms is perfectly consistent with long-established patent jurisprudence. Whichever the case, the global trend is that discoveries arising from the new biotechnologies are increasingly treated as patentable inventions, but that differences between European and United States practice ensure that this trend is more gradual than it would otherwise be.
This paper starts by tracing the historical development of patent law in chemistry and the life sciences. It reveals that until the 1980s, patents issued claiming organisms within their scope were extremely small in number. Can this historical lack of patenting activity be attributed solely to basic incompatibility, or is it simply that the lack of commercially-driven innovation going on in this field meant there was no demand for such patents? The second part shows that this question is a difficult one to answer. It attempts to do so by investigating whether ‘patenting life’, to use a convenient but misleading term popular with advocacy groups, is or is not consistent with traditional patent jurisprudence. This matter is considered in the light of legal decisions in the US, Europe and Canada, including ones concerning the oncomouse patents. The third part of the paper explains how US and European patent law standards based on their statutes and on their jurisprudence have been exported, in consequence of which the international standard is a mix of the two. The final part looks ahead to see where things are likely to go in the future, focusing in particular on moves at the World Intellectual Property Organization to harmonise substantive patent law.
Sociology of Science and Technology NETwork - last update: April 2006