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Niclas Kunczik
The German Way of Dealing with “The Tragedy of the Anticommons” – Purpose-Bound Protection for Product Patents on Genetic Information in Germany
The phenomenon of “the tragedy of the anticommons”
Making decisions in the European Union and transforming them into legal instruments can sometimes become a life-task. Although it took a whole decade to adopt the European Communities “Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions”, the political and legal dispute about ”patents on life” was not settled at all. Some member states – the Netherlands, supported by Italy and Norway – took this issue to the European Court of Justice (ECJ) seeking the annulment of the Directive. The Court dismissed this appeal in 2001. But the discussion about ”patents on life” did not end. Even though it has been a somehow accepted fact that patents on living materials including human DNA are being granted, an even more heated discussion is focusing on the scope of those gene-patents. The question is if it is acceptable to allow the classical scope protection for gene sequences, or if the patent protection should be limited to the specific use disclosed in the patent application (“purpose-bound protection”).
Journal of International Biotechnology Law, Walter de Gruyter
Print ISSN: 1612-6068
Volume: 2, 09/2005
Pages: 194 - 197