Does the patenting of biological material conflict with traditional justifications for patent law, and in particular John Locke's (1632–1704) Labour theory?
Refer to the relevant statute and case law to support your answer.
To be patentable an invention must be new. Section 2 of the PA 1977 elaborates
section 1(1)(a) of the Patent Act 1977 that an invention that forms part of the ‘state of the art’ is not new.
To decide whether invention is new is a three-step process:
If the invention has been disclosed before its priority date, it is not new. A microbe, plant or animal, as it exists in nature is not new. Thus for any invention to be patent able it must involve the “Hand of A man”. The novelty requirement, which precludes the patenting of subject matter as it exists in nature, the patent law have additional stringent requirements which prevent the patenting of a subject matter, which is not a substantial advancement over previously known technology.
The most important of these requirements is the requirement that an invention to be “non-obvious” in order to be patent able. Unusual or unexpected advantageous properties are characteristics, which can help establish unobvious ness.
Also difficulties in obtaining the result make it unobvious. The test used in the UK to determine unobviousness was set in Windsurfing International v Tabur Marine [1985] where Justice Oliver lay down the Windsurfing test, which has four stages.
Another requirement of patent law is that the patent application must provide a description of the invention in such a detail, that a person skilled in the art of the invention, reading the description, can make and use the invention without undue experimentation. Technograph v Mills & Rockley [1972] R.P.C Lord Reid “…the hypothetical addressee is a skilled technician who is well acquainted with workshop technique and who has carefully read the relevant literature”. This requirement is the heart of the patent system because it ensures that, if a patent is granted, the publish will be able to learn from the invention, improve upon the invention, and when the patent expires, practice the invention without any patent restriction.
The requirement that a patentable be susceptible or capable of industrial application is set out in Section 4(1) of the Patent Act. This requirement had no previous counterpart in previous British Statutes. In part the concept is concerned with the categories of subject matter that fall within the sphere of the patent system.
Biotechnological inventions are defined as products or processes containing ‘biological material’, which is material containing genetic information and capable of being reproduced in a biological system’.
Commentary:
This essay answer is a borderline fail. It represents an answer slightly below the acceptable standard for a passing mark. While the student demonstrates general familiarity with the patent law subject area and does include some accurate material, this material is largely irrelevant and not well-shaped to answer the two limbs of the specific question posed. The answer contains poorly developed arguments in relation to the patenting of biological material and does not address the traditional justifications for patenting. A short answer on the correct topic in general terms will score around 30-35%.
Janice Denoncourt
Senior Law Lecturer
Nottingham Law School