The International Consortium on Agricultural Biotechnology Research (ICABR)


A study of European Private Law from the Intellectual Property Law standpoint

Franco S. Toni di Cigoli
Pontificia UniversitÓ Lateranense
visiting lecturer at Plater College , Oxford

The paper, in six parts, deals with the issues concerning agricultural biotechnology products and focuses on the patent law as an element of the intellectual property law. Certainly this law must be approached as a component of Private Law, which can be qualified as International, European or National by its different sources. In this context we want to assign priority to European sources with the objective to give a contribution to the building of European Private Law. So, in Community Law, a privileged reference must be made to a specific Directive, 98/44/EC of July 6, 1998, in general, on the legal protection of biotechnological inventions and, in particular, on the patentability of plant and animal varieties. The Directive sets out to protect this invention within the framework of and in accordance with the provision of patent law and assumes that plant and animal varieties can have legal protection.

The first part is an introduction which serves as a preliminary methodological positioning of the topic and in which the paper is outlined.

In the following four we discuss some of the core matters concerning agricultural biotechnology and patent law.

The second part privileges themes related to the harmonisation of the differences in the law belonging to each European member state with the purpose of supporting, favouring and benefiting the Common Market, however in conformity with both the European Patent Convention, which offers patent protection throughout the signatory states covering a large regional patent system, and the international Trade Related Aspects of Intellectual Property Rights agreement, denominated TRIPs, which sets minimum standards for Intellectual Property Law in member countries of the World Trade Organization.

The third and fourth parts privilege themes which move from ethical aspects (having a compendium in the exceptions to patentability) to juridical aspects (having a compendium in the patentable) relevant to biotechnology products of animal and vegetable origin.

The fifth part privileges themes related to guaranteed access, to the exclusive right granted by a patent and to derogation of this right which conform this specific patent law.

Finally, the sixth part contains some conclusions which draft the European legal course to the patent law in the field of agricultural biotechnology as a constituent of the building of European Private Law from the Intellectual Property Law standpoint.

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