By Andreas Hübel
SpringerBriefs in Biotech Patents offers well timed reviews on highbrow homes (IP) concerns and patent elements within the box of biotechnology. during this quantity the bounds of patentability are addressed, a question that's frequently raised by way of biotechnological innovations: the 1st part addresses present concerns within the patentability of crops produced via basically organic techniques together with the debate among farmer’s privilege and patent exhaustion with recognize to seeds within the US. the second one part examines the patentability of human embryonic stem cells in Europe and the USA, additionally contemplating replacement applied sciences with recognize to their practicability and patentability. The 3rd part makes a speciality of the patentability of genes and nucleic acids, specifically the difficulty of patenting of encoding genes and nucleic acids.
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Additional resources for Limits of Patentability: Plant Sciences, Stem Cells and Nucleic Acids
Parallel cases were pending in the UK, Denmark, and Spain. 40 A. Hüttermann • Since there is no de minimis provision in the Biopatent directive, the fact that the DNA is only present in traces is of no importance. In his plea, the Attorney General did not follow this position, actually he stated that in the view of the Biopatent Directive substance protection for DNA may not be available at all. Since it is correct that there is no de minimis provision, he referred to the function requirement, as it is recited in Art.
Brüstle has used this argument in his ECJ case to define the meaning of the term ‘‘embryo’’ as used in the Biopatent Directive—to no avail, as we all know now. Interestingly, the Jewish understanding of an embryo which requires utmost protection is completely different. It seems that the Jewish tradition attributes minimal life value to early-stage embryos outside the female uterus. The Talmud defines any embryo up to 40 days old as a mere fluid. Further, it seems also important whether the embryo is inside a woman’s uterus or in a lab, where it cannot develop into a child.
In 2006, Klimanskaya et al. reported about the successful derivation of hES cells from cells obtained by biopsy of a human blastomere (8–20 cells), which survived this incident. This approach has been termed ‘‘Blastomere extraction’’. Both authors discussed the possibility that the embryo could still be implanted and brought to term. Notably, a similar approach is already applied in preimplantation genetic diagnosis (PGD), where one or more cells are sampled from a blastocyst obtained by in vitro fertilization and undergo molecular screening, while the remaining blastocyst is then implanted into a mother.