Biotechnological Inventions
Traditionally, distinctions have been drawn between naturally occurring substances which are said to be discoveries and thus “unpatentable”, and artificial matters which contain the necessary human intervention (also called, “the hand of man”) and are thus patentable. However, today, this distinction is often controversial and problematic to draw. Whilst processes used to isolate natural substances are patentable without much debate, this cannot be said of patents relating to the substances isolated using these processes. Some commentators argue that it is difficult to see how isolation itself results in changes in element of those substances, making the latter patentable.
As science progresses, we begin to see many more inventions which were once thought to be almost impossible. The growth of the biotechnology industry, in particular, has resulted in various forms of genetically-engineered animal and plant varieties being developed. In the past, living organisms have been excluded from patenting. But this changed in 1980 when the US Supreme Court in Diamond v Chakrabarty (narrowly) ruled that a strain of bacteria that had been modified by the insertion of new genes was patentable because it was not naturally occurring. A new variety of maize was granted a patent as well, as a result of a judicial decision Ex parte Hibberd, 227 USPQ 443 (Bd. Pat. App. & Interf. 1985). This was then followed by the Harvard/Onco-Mouse Decision in Europe where claims related to a genetically-modified non-human mammal, which had been modified so that it would be susceptible to cancer, was found to be patentable. The list of biotech inventions has since grown longer.
The above trends would arguably continue to increase exponentially over time. As the patent landscape becomes more complex the need for IP management and capacity building (in developing countries more specifically) will increasingly be required to deal with the complexities presented.
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