Protection for DNA-based claims in Europe

Lawyers Matthew Royle

The unique property of DNA raises a number of questions in patent law.  In particular, if a valuable effect is identified, what protection should be given and what conditions should be attached to providing this protection.  Should for instance, a patent protect the DNA molecule itself?  In the vast majority, if not all cases, DNA molecules are identified and sequenced from nature and are therefore discoveries rather than inventions.  Should a patent and the corresponding 20-year monopoly be granted for a discovery?  Conversely, is it justified to treat claims to DNA molecules any different to claims to new chemical entities?  Some of these questions have been addressed by Directive 98/44/EC on the Legal Protection of Biotechnological Inventions (the "Biotech Directive") but questions still remain about the implementation and interpretation of this Directive.

Partner Gareth Morgan's and Associate Matthew Royle's recent article which was published in Patent World December 2008/January 2009 looks at the core legislation, the approach taken to DNA based claims in the UK and in Europe, and addresses the impact of recent decisions on future protection for patentees.