The International Consortium on Agricultural Biotechnology Research (ICABR)
THE PATENT LAW IN THE FIELD OF AGRICULTURAL BIOTECHNOLOGY
A study of European Private Law from the Intellectual Property Law standpoint
Franco S. Toni di Cigoli
Pontifical Lateran University
Plater College, Oxford
The paper is in seven parts and deals with the issues concerning agricultural biotechnology products. The intention is to focus on the Patent Law as an element of the Intellectual Property Law, in the part called industrial. Certainly this law must be approached as a component of that portion of the law called 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.
Therefore, if we consider the 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 inventions relating to plants and animals.
The first part is the present introduction. It explains the juridical path of this specific study on the European legal order, with the purpose of attempting a collocation of the biotechnological invention Patent Law in the Private Law theory.
In the second part preliminary considerations to draft the object, the means and the methodological positioning are given. This is necessary in order to establish the juridical boundaries within which the topics of this paper are outlined.
In the four parts which follow we discuss some of the core matters concerning agricultural biotechnology and Patent Law.
The third part privileges themes related to approximation with a view to harmonise the differences in the national laws belonging to each European member state with the aspiration to support, favour and benefit the functioning of the Common Market. This process must take place both 1.a) within the framework of and in accordance with the general provisions of Patent Law provided by the European Patent Convention, which aims at offering common patent protection throughout the signatory states already covered by their own national patent system, and 1.b) 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 Organisation.
The forth part privileges juridical-ethical themes. It outlines how merely ethical aspects become juridically relevant because of the choice and by the qualification of the European legislator. This produces a compendium of the exceptions to patentability, relevant to biotechnology products of animal and vegetable origin.
The fifth part deals with themes related to the juridical mechanism of patentability. This part shows how the Directive, 98/44/EC of July 6, 1998 has established, regards to agricultural biotechnologies, what is patentable and with which procedures, consequentially specifying what is authorised, what is limited and what is possible in order to give legal protection to the inventions.
The sixth part privileges themes related to the guaranteed access, to the exclusive right granted by a patent and to the derogation of this right in the exercise of the agricultural activity and in favour of the farmer, all of which give special character to this rising patent law.
Finally, the seventh 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