Scope of Process Patents in Farm Animal Production

FNI Report 6/2007. Lysaker, FNI, 2007, 82 p.

This report analyses the scope of protection for patents regarding processes for the production of farm animals. There is a rapidly growing number of process patent applications in the farm animal breeding sector. Patent law is general in form and is seldom adapted to single areas of innovation. It was initially created for the purpose of granting exclusive rights to technical inventions; it was taken for granted that higher animals, food production and pharmaceuticals were too important for mankind to be included under exclusive private rights. When patent law now is increasingly used in the animal sector, the question of how the law will apply to this particular field of innovation is unanswered. Some inventions are still left out of the patentable subject matter by exemptions from patentability. The scope of these exemptions is therefore also of importance for determining to what extent protection on inventions in the protection of farm animals is obtainable. The relevant exemptions from patentability will thus also be analysed in the report. A natural point of departure for this kind of analysis is the TRIPS agreement. It establishes the general level of protection for patents in all its Member States. In Europe the scope of protection for biotechnological inventions has been subject to further legislation through the Biotech Directive (EC/98/44). Together with the TRIPS agreement it establishes the legal basis for the analysis in this report. In light of the relevant provisions of this legislation, a current pending PCT-patent application will be analysed to determine the possible scope of protection it would confer on the patent holder if granted.