15. Patents - patentability Flashcards
Chiron v Organon (no.12)
capable of industrial application
- useful purpose
- pratical application or concrete benefit
if no purpose for discovered genome it is not patentable
Thompson’s Application
made/used in “any kind of industry” = capable of industrial application
INVENTIONS CONTRAVEING WELL-ESTABLISHED SCIENTIFIC LAW = excluded (not industrially applicable)
Eli Lily
capable of industrial application
NO: vague and speculative indications of possibilities
YES: plausible and reasonably credible claimed use (“educated guess”)
just need to show some basis for industrial applicability but threshold is low (just plausibility needed)
Aerotel v Telco
no evident underlying purpose behind provisions (for non-patentability)
UK REJECTED any hardware approach
Symbian v Comptroller
computer programmes
- method for accessing data = computer program?
- technical solution to technical problem (just happens to be on a computer)
- not just a computer programme
UK approach:
- construe invention as a whole
- identify contribution made by invention
- is the contribution technical and not within s.1(2)?
IGNORE THE COMPUTER
Pension Benefits System
EPO = any hardware approach
Re Halliberton
UK = technical contribution EPO = any hardware approach
Harvard/Onco Mouse
exceptions read narrowly
- just because patent involves animal does not mean it is not patentable
- balance benefit and downside
Downside:
- causes animal suffering
- risk if released
Upside:
- cancer treatment for mankind
WARF/Stem cells
use of stem cells claimed but only way to obtain stem cells involved destruction of human embryos
- patent invalid
- purpose of s.3(d) is to protect human dignity so give it WIDE interpretation
- did not matter that after filing date, stem cells could be obtained without destroying embryos
Brustle v Greenpeace
CAN USE embryos for research only if research is for embryo itself
Tomatoes I, Broccoli I
to be not essentially biological, must be a technical step introduced
- if technical step modifies or introduces a trait into the genome of plant/animal it is not biological
- if technical step just enables process then it is biological (e.g. pollinating)
Tomatoes II, Broccoli II
product of essentially biological process can be patented
Howard Florey
invention concerning a human gene
- patentable because isolated DNA
- not patenting life
- no offence to human dignity
Thompson/Cornea
therapy: any treatment designed to cure/aleviate/lessen symptoms
Shell/Bloodflow
surgery does not need to be directed to health but cannot involve killing animal
