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Gene-related inventions in Europe: purpose- vs function-bound protection

Jessica C Lai

Keywords: patent law; gene patents; purpose-bound; function-bound; Biotech Directive; EPO; Germany; Switzerland

Biotech inventions have proved to be severely challenging for patent law systems around the world. European states have attempted to meet these challenges, resulting in law that directly deals with biotechnology at the national and European level. However, whether different states have dealt with biotechnology in a logical and clear manner is another question. This article discusses law that has been created through the European Union and European Patent Office, before addressing and comparing the manner in which Germany and Switzerland have implemented this law into their national statutes. It concludes that neither state has technologically sound law, creating distinctions that are not practically logical. The final part of this article discusses a term that was introduced into European patent law through the ‘Biotech Directive’, through the requirement that applicants disclose an industrial application or ‘function’ for a sequence or partial sequence of a gene. The term ‘function’ has been taken up by both Germany and Switzerland, but its potential – particularly in contrast to the term ‘industrial application’ – has yet to be realized. Though one often speaks of purpose-bound claims, this article explores the possibility of function-bound claims.

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