Biotechnology and Software Patent Law

Biotechnology and Software Patent Law

A Comparative Review of New Developments

New Directions in Patent Law series

Edited by Emanuela Arezzo and Gustavo Ghidini

The new millennium has carried several challenges for patent law. This up-to-date book provides readers with an important overview of the most critical issues patent law is still facing today at the beginning of the twenty first century, on both sides of the Atlantic.

Chapter 12: Moral Limits to Biotech Patents in Europe: A Quest for Higher Harmonization

Andrea Ottolia

Subjects: environment, biotechnology, environmental law, law - academic, biotechnology and pharmaceutical law, environmental law, intellectual property law


Andrea Ottolia INTRODUCTION Intellectual property law involves the consideration of public interests: while some are ontologically involved with the recognition of exclusive rights,1 others emerge only in specific cases of conflict.2 IPRs on biotechnology inventions raise a wide set of specific interests of the latter type: from food security to biodiversity, from environmental issues to human dignity. The interface between IPRs and ethics has received wide regulation in Europe both under the EPC system and under the harmonization system provided by EU law on the premise that when the subject matter belongs to the living world or involves fundamental mechanics of life, moral issues become ontologically relevant to this field of law. 1 The typical function of intellectual property law is the fine tuning of IPRs by crafting the protection in a way that minimizes costs and maximizes benefits for society at large, see P. Torremans, Holyoak and Torremans Intellectual Property Law, Butterworths, 2001, at 20 and 16, M. Ricolfi, Biotechnology, Patents and Epistemic Approaches, Journal of Biolaw & Business, Special Supplement (2002), at 77. Indeed, intellectual property models differ substantially not only in the cogency of the norms guaranteeing such societal interests but mostly in the choice of the institutions meant to guarantee such balance. 2 I would recall at least two kinds of public interests that carry more exceptional interference with IPRs and whose internalization in the IP protection is more difficult to be assumed: i.e. (i) the interest in accessing knowledge which are not ontologically linked to...

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