Functions and Limits of Patent Law
- PDF / 421,900 Bytes
- 28 Pages / 439.37 x 666.142 pts Page_size
- 3 Downloads / 221 Views
1 Introduction In the past decade patent law has been in turmoil and has been seriously criticised.1 Some observers even go as far as to call it “eine Vertrauenskrise des Patentsystems”2 (a crisis of confidence of the patent system). Criticism of the operation of the patent system arose from scientists and the general public, on the one hand, and legal scholars and patent experts, on the other. The first group has expressed serious doubts on the patentability of software and human genes3, whereas the last group has been highly concerned about patent quality and the proliferation of patents. The ongoing consultation procedures on patent reform in Europe4, ini*
1
2
3
4
The present research was supported by the Research Foundation – Flanders (Fonds voor Wetenschappelijk Onderzoek – Vlaanderen, FWO) and the Vancraesbeeck Fund. The authors would like to thank Erik Claes, Wouter Devroe, Hans Graux, Bert Keirsbilck, Wim Schols and Birgit Verbeure for their valuable comments on an earlier draft of this chapter. In the context of the present chapter, the notion ‘patent law’ and ‘patent system’ has to be construed in its widest sense. It does not only refer to pre–grant, but also to post–grant issues. Furthermore, it does not only encompass legislation embedded in international treaties and in the European Patent Convention (EPC), but also rules laid down in national patent acts and stemming from judgments from national (patent) courts. I. Schneider, “Die Interdependenz von Technik und Recht – eine vernachlässigte TA– Perspektive, konkretisiert am Beispiel der Transformation des Patentrechts vom technikfreisetzenden zum regulativen Recht in der Bio–Patentierung”, in A. Bora, M. Decker, A. Grunwald and O. Renn (eds.), Technik in einer fragilen Welt. Die Rolle der Technikfolgenabschätzung (Berlin: Sigma, 2005) 409–436. These doubts were especially expressed in the framework of the debates on Directive 98/44/EC of the European Parliament and the Council of 6 July 1998 on the legal protection of biotechnological inventions, O.J. L 213/13, 30.07.1998 (hereinafter EU Biotechnology Directive). For some comments, see G. Van Overwalle, “Legal and Ethical Aspects of Bio– Patenting: Critical Analysis of the EU Biotechnology Directive”, in P. Drahos (ed.), Death of Patents (Oxon: Lawtext Publishing, 2005) 212–227. Also some doubts were raised with regard to the Proposal for a Directive of the European Parliament and the Council on the patentability of computer–implemented inventions, Brussels, 20/02/2002, COM(2002) 92 final, (hereinafter EU CII Directive). The development of the European patent system is taking place at three levels: (a) the harmonisation of national patent regulations by the EU; (b) the possible creation of an EU wide Community patent (European Commission, Proposal for a Regulation of the Council on the Community Patent, 1 August 2000, COM (2000) 412 final, see also: Agreement No. 89/695/EEC of the European Commission relating to Community patents done at Luxembourg on 15 December 1989, amending the Agreement relati
Data Loading...
