Why are there product patents as well as process patents?
In the practive, process patents do not give enough protection. In a patent you have to give an exact description of what you patent, and the industrial applications that are going with it. Sometimes, when a product has been identified and produced, it is relatively easy to produce the product via a slightly alternative process. This does not give justice to the scientist who has invented the product. If we compare it to copyrights: a novel, with a few words changed, should not be published and sold by someone else. This does not give justice to the writer.
Take the example of the hormone relaxin. Relaxin does exist naturally in the bodies of pregnant women. The processes for producing a medicine (such as the hormone relaxin) from a DNA sequence are self-evidently patentable if they are new and involve an inventive step. The product relaxin can be patented, when and if is identified and isolated through human intervention and, a step further, the DNA sequence that codes for the hormone is used to develop a technical process for producing relaxin from the decoded DNA sequence.
The DNA sequence as a product as such needs patent protection like other chemical products, but we are dealing with the sequence in combination with the technical intervention, and the industrial applications as a package. So the relaxin of pregnant women in their bodies is not patented and certainly not owned!
For future research, it is such that future applications which are within the scope of the industrial applications mentioned in the patent claim, should ask permission from the patentee to commercialise these for the period of the patent protection.
For example once a DNA sequence, information about its function, and guidance about its utility has been provided by an inventor, and this has been made available to the public, others may, entirely legally, use this information to develop further inventions based upon that knowledge. These inventions may be patentable in themselves, but they would never have come about, if it were not for the efforts of the first inventor.
Such further inventions may include use of the DNA sequence for uses slightly other than those indicated by the first inventor, and it is reasonable that within the limited period of protection granted to the first inventor, subsequent inventors have to obtain his permission in order to exploit their inventions commercially – so that the first inventor gets some return as well. This is mostly done via a license that the second inventor pays to the first one.
So patents neither prohibit further research and development on patented genes, nor development of therapies or diagnosis. Only if the genes are exploited commercially a patent holder can enforce his rights.
In addition, the intellectual property agreement reached in the Uruguay Round of the General Agreement on Tariffs (TRIPS -Trade Related Intellectual Property Rights) confirms the basic premise that patents should be available for products and processes in all fields of technology.
If patents were to be awarded only for biotechnology processes and not for biotechnology products (excluding from patentability subject matter such as human genes and DNA sequences), this would be a discrimination contrary to the basic principles of TRIPS.
Take the example of the hormone relaxin. Relaxin does exist naturally in the bodies of pregnant women. The processes for producing a medicine (such as the hormone relaxin) from a DNA sequence are self-evidently patentable if they are new and involve an inventive step. The product relaxin can be patented, when and if is identified and isolated through human intervention and, a step further, the DNA sequence that codes for the hormone is used to develop a technical process for producing relaxin from the decoded DNA sequence.
The DNA sequence as a product as such needs patent protection like other chemical products, but we are dealing with the sequence in combination with the technical intervention, and the industrial applications as a package. So the relaxin of pregnant women in their bodies is not patented and certainly not owned!
For future research, it is such that future applications which are within the scope of the industrial applications mentioned in the patent claim, should ask permission from the patentee to commercialise these for the period of the patent protection.
For example once a DNA sequence, information about its function, and guidance about its utility has been provided by an inventor, and this has been made available to the public, others may, entirely legally, use this information to develop further inventions based upon that knowledge. These inventions may be patentable in themselves, but they would never have come about, if it were not for the efforts of the first inventor.
Such further inventions may include use of the DNA sequence for uses slightly other than those indicated by the first inventor, and it is reasonable that within the limited period of protection granted to the first inventor, subsequent inventors have to obtain his permission in order to exploit their inventions commercially – so that the first inventor gets some return as well. This is mostly done via a license that the second inventor pays to the first one.
So patents neither prohibit further research and development on patented genes, nor development of therapies or diagnosis. Only if the genes are exploited commercially a patent holder can enforce his rights.
In addition, the intellectual property agreement reached in the Uruguay Round of the General Agreement on Tariffs (TRIPS -Trade Related Intellectual Property Rights) confirms the basic premise that patents should be available for products and processes in all fields of technology.
If patents were to be awarded only for biotechnology processes and not for biotechnology products (excluding from patentability subject matter such as human genes and DNA sequences), this would be a discrimination contrary to the basic principles of TRIPS.
