Patentability of gene sequences and Directive 98/44

"No Performance – No Protection? Scope of Protection for DNA Sequences and Directive 98/44/EC" is the title of a draft article received for publication by Michael A. Kock. Dr Kock, a European Patent Attorney is Head of IP,Seeds & Biotechnology, with Syngenta International AG, Switzerland. Writing in his personal capacity, he has been working on an article for JIPLP which is summarised by his Key Issues:

"• The European Court of Justice has been asked to clarify through interpretation of Directive 98/44 whether a DNA sequence is entitled to patent protection as a compound as such, or only under circumstances where the DNA performs its function.

• Amicus curiae observations have been submitted by several EU Member States and the Commission. All argue for a restriction of the patentee’s rights.

• A ruling following the restrictive position would have severe consequences for EU patent holder – especially in the field of plant biotechnology and seeds: not only will isolated DNA become unprotected, but a patentee would also lose rights against the importation of harvested goods produced outside the EU without his authorization.

• Although some of the consequences can be compensated by alternative patent claim drafting and using plant variety protection, patent protection would become significantly weakened. This may have negative consequences for future investments in this field".

Since the European Court of Justice is holding its oral hearing in December, the text of Dr Kock's article is being made available so that interested parties can consider it before the hearing. It is hoped that, in the light of the outcome of the decision itself and responses to Dr Kock's analysis, a final version of this article will be published in JIPLP after the Court has given its final ruling.

You can read the draft article in full here. If you'd like to contact Dr Kock and offer him your comments and observations on this draft, please email him here

Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, OJ 1998, L213/13 can be accessed here.