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International Cooperation
International cooperation has also been sought for application of patent law to solve problems, which are not confined to one or few countries. In a convention called Paris Convention of 1988, the basic principles of equal treatment for domestic and foreign inventors were established. The Paris Convention now has 100 member states.
The convention allows inventors to claim international priority by filing of a patent application initially in one member state and subsequently in others.
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The main instrument of international cooperation for intellectual property is the World Intellecutal Property Organization (WIPO) based in Geneva. It administers (but not enforces law) the Paris Convention and all subsequent conventions. WIPO operates by asking member states to ratify a convention and to introduce the agreed basic principles into their national laws. Another international group is the European Patent Convention (EPC) of 1973, which began operation in 1978 and has 14 member states. EPC has the distinction of being the first patent statute to introduce specific provisions for biotechnology inventions.
Two of these important provisions include the following: (i) need of culture collections as patent depositories for the placement of microorganisms referred to in patent applications; this is necessary, because the complete description of living material is difficult and may not be fully reproducible; (ii) exclusion of certain plant related inventions from the list of those which can be patented, e.g. plant and animal varieties bred through classical methods (these are protected through plant and animal breeders rights).
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First major study of international patent protection for biotechnology was published in 1985 by the Organization for Economic Cooperation and Development (OECD).
WIPO also began a wider study through experts on biotechnological inventions, with an objective to provide suggested solutions for problems related to patent law. Taking EPC as a model, in 1988, the European Commission (Ee) formulated a European Commission Directive.
to help the member states modify their national laws, so that they become uniform in European Countries. This directive had following three major proposals, which will make patent laws more favourable for patent applicants: (i) An invention must not be refused protection simply because it involves living matter (earlier no patents were granted for living forms).
Examples of patentability of microbiological processes and products. (ii) The scope of patent should extend to all progeny produced by multiplication of parental material, provided it retains the characteristics of this patented material. Generally, under patent law, there is provision of 'exhaustion of rights' once the product is sold, so that the purchaser can cultivate unlimited quantity from a mall quantity purchased from the patent holder (this has been overcome in the directive).
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Some examples of patentable microbiological inventions (processes and products).
Sl.No |
Process |
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Products |
1 |
Methods (reproducible) for producing new microorganisms, e.g., method for (i) reducing pathogenicity, (ii) enhancing biological utility, (iii) isolation (new methods) media or culture conditions, (iv) constructing new organisms by genetic recombination or cell fusion (normal screening methods to isolate naturally occurring microorganisms are not patentable). |
1 |
Antibiotics and other products are protected as product per se so that it is protected even if produced by an alternative process, including a chemical process. |
2 |
Use claim is also classified as a process, e.g. use of (i) strain to control agricultural pests, (ii) new microorganisms for fermentation, biomass production, extraction of metals, clean-up operation or for biotransformation. |
2 |
New microorganisms can also be applied for product claims, although there are arguments against patenting life |
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3 |
Composition of microorganisms can be used for product claims in addition to use claim which is a process patent. |
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Further, the patented invention can be put to experimental use without infringement of the patent. But the experiments may sometimes be designed as a 'way around'the patent and may thus be utilized for commercial purposes.
Therefore, in the European Commission Directive (Article 10), the experimental use is deleted. Thus, according to this directive, patented living forms will neither be allowed multiplication by the purchaser, nor will it be allowed to be used for experiments without paying the royalty for the patent. (iii) The microorganisms to be patented will have to be deposited in culture collections. For convenience, in only microorganisms are used for illustration, but the categories shown in this table also apply equally to other types of biological material (e.g. cell lines, plant and animal cells).
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