SOME ASPECTS OF THE SCOPE OF PATENT PROTECTION FOR BIOTECHNOLOGICAL INVENTIONS
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Traditional rules and legal norms do not give sufficient basis for the elimination of doubts and controversy related to the scope of patent protection of biotechnological inventions. The aim of this article is to present: (a) some of the main problems on which the discussion is focused and (b) proposals for their solution. The first of the problems presented concerns the question of the identification of patentable invention in the course of a patent proceeding, with emphasis on the disclosure requirement. The second group consists of problems connected with defining the scope of a monopoly conferred by patent decision. One of the most controversial questions is whether a patent on a biological product gives (and should give) so-called absolute protection or only functional (purposive) limited protection. The next deeply controversial problem is caused by the specific characteristics of biological material - its capability of reproducing itself or being reproduced in a biological system. The question is how far does the patent monopoly extend according to law and how far should it extend? What criteria should be decisive for treating products as covered by the patent monopoly? Showing these problems and controversy against the background of the traditionally established principles of patent law gives the grounds for conclusion that, though biotechnological inventions substantially differ from other inventions, some of these principles - these which mirrored the aim and ethical basis of patent law should be respected also in this new area. The consequence of this opinion is the critical attitude to the observed tendency to extend the scope of patent monopoly beyond that which is justified by common good.
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