The New Biology
Edited by Matthew Rimmer and Alison McLennan
Chapter 2: Bilski v. Kappos and Biotechnology Patents: Back to the Future?
Yann Joly and Francis Hemmings New processes will undoubtedly play a crucial role in the continuing development of biotechnology. In this chapter, developments in process patentability that have been generated by the 2010 case of Bilski v. Kappos1 will be examined with particular emphasis laid on the concept of balancing of rights: employing a patent regime as a means to stimulate innovation requires a delicate balance to be struck between the rights granted to inventors on the one hand and the rights of access of the public on the other. In most patent regimes, that balance is achieved in part by allowing inventors to patent inventions, but not ‘laws of nature, physical phenomena, and abstract ideas’ [hereinafter referred to as fundamental principles].2 While this balancing act appears to be simple, in practice the application of the distinction between the two presents a considerable challenge and the topic remains the subject of ongoing debate. Slight changes to the scope of patentable subject matter can have substantial consequences for processes in the biotechnology ﬁeld, as exempliﬁed by the case of Association for Molecular Pathology v. United States Patent and Trademark Ofﬁce, where a claim for patent protection of a diagnostic method for breast cancer was refused at ﬁrst instance.3 The Court said that it sought to protect a fundamental principle.4 On appeal, the Court of Appeals for the Federal Circuit partially overturned the ﬁrst instance decision, with the majority of the Court upholding the validity of 1 2 3...
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