Biotechnological Subject Matter Capable of Being Patented in Principle
The preceding synopsis of recent Swiss legal history illustrates the kind of conceptual hopscotch that is being played out among ‘interested circles’ with regard to biotechnology. The rules governing this game were largely determined over twenty years ago when, as we saw in the last chapter, political forces loosed by a dispute over protection of one kind of biological invention (plant varieties) led to the introduction of new, largely undefined terms (‘microbiological processes,’ ‘essentially biological processes,’ ‘plant and animal varieties’) into the lexicon of international patent law. The controversy over plant varietal protection, in turn, had its roots in an even earlier debate concerning what was deemed the very essence of invention, embodied in concepts of ‘industrial application’ and ‘reproducibility.’ The resulting polarization of viewpoints in this regard moved proponents to sweeping generalizations (for instance, ‘since some plant-related inventions are not de jure reproducible, all such inventions are per se unpatentable’), usually without reference to the possibility of future technical advances.
KeywordsSubject Matter Intellectual Property Supra Note Patent Protection Patent System
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- 37.See, e.g., Utermann, ‘Protection of Products of Nature,’ 9 IIC 409, 523 (1978).Google Scholar
- 140.See Chapter 10, notes 298–299 and accompanying text and text accompanying note 168, infra. See also, Cadman, ‘The Protection of Microorganisms Under European Patent Law,’ 16 IIC 311, 317 (1985).Google Scholar