Full-text resources of CEJSH and other databases are now available in the new Library of Science.
Visit https://bibliotekanauki.pl

Refine search results

Journals help

  1. 2 Studia Prawnicze

Years help

  1. 1 2006

  2. 1 2005

Authors help

  1. 2 Zakowska-Henzler H.

Results found: 2

first rewind previous Page / 1 next fast forward last

Search results

help Sort By:

help Limit search:
first rewind previous Page / 1 next fast forward last
1

SOME ASPECTS OF THE SCOPE OF PATENT PROTECTION FOR BIOTECHNOLOGICAL INVENTIONS

100%
Zakowska-Henzler H.
Studia Prawnicze
|
2006
|
issue 4(170)
59-87
EN
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.
2

INVENTIONS CONCERNING THE HUMAN BODY IN THE LIGHT OF EUROPEAN PATENT LAW

100%
Zakowska-Henzler H.
Studia Prawnicze
|
2005
|
issue 1(163)
71-120
EN
In 1998 the European Parliament and the Council adopted Directive 9844 on the legal protection of biotechnological inventions. The process of implementation of the Directive into national legal systems has encountered difficulties. Their most serious reason was, and are, reservations to the principles of patenting inventions relating to the human body. The aim of this article is to present the three main groups of problems on which the controversy and discussion are focused. The first one concerns problems connected with the concept of invention related to the product - elements isolated form the human body (e.g. sequence of DNA, cells or line of cells) and discrepancies between this concept and the traditional concept of invention. This controversy related mainly to the correctness and justification of this concept on which the Directive is based and to the method of solution of problems which are inherent consequences of this concept of invention. The results of analysis of the Directive's provisions characterizing inventions related to the human body is the basis to evaluate whether it is reasonable to say that the Directive allows to patent the human body. The second group constitutes problems related to the method of interpretation of the ban of patenting inventions where their commercial exploitation would be contrary to public order or morality, which is settled in the Directive. In this part are presented problems and doubts related both to the identification of the object of this ban (commercial exploitation) as well as to the criteria of the evaluation. The third group concerns problems connected with the defining relation, which according to the Directive, should be between allowing the patenting of the invention based on biological material of human origin (or inventions in which that material is used) and informed consent of the donor. In other words, whether the EU states are obliged to guarantee the donor the legal possibility to block the patenting of these kinds of inventions in the event that this kind of biological material was obtained or used without permission. An analysis of the above problems and the method of their regulation in the Directive gives the grounds for conclusion that, because of the specifics of inventions related to biological material of human origin, patents in this area cause many problems. Traditional principles and legal norms including the Directive's provisions do not give explicit solutions which would eliminate doubts and controversy.
first rewind previous Page / 1 next fast forward last
JavaScript is turned off in your web browser. Turn it on to take full advantage of this site, then refresh the page.