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European Union (EU) - New Draft Directive on Patentability of Biotechnology Inventions

It will be recalled that the European Union has already attempted to adopt a directive relating to the protection of biotechnology inventions but this failed to be adopted when it was rejected by the European Parliament (see our Information Letter N.S. 185). A fresh, but less ambitious, attempt is now being made. The European Commission has now issued a new draft directive. Its main features are as follows:

1) drawing a distinction between patentable inventions and unpatentable discoveries so that, for example, a newly found gene or cell in its natural state will be classified as a discovery and thus not subject to patent protection;

2) establishing that patents should not be granted on germ line gene therapy (i.e., techniques that would affect the progeny of a patient as well as the patient being treated) on the ground that such techniques would be contrary to the European Patent Convention's prohibition of the grant of patents on inventions whose exploitation would be contrary to morality;

3) provision of a farmer's privilege to permit farmers to use on their own farms without the consent of the patentee seed from patented plants harvested on their own land or progeny from patented animals reared on their own land.

The proposed directive must be considered and approved by the Council of Ministers and the European Parliament before it can become law.

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