Re-examining international harmonization of determining patentable subject matter for biotechnological inventions
重新審視判定生物技術發明可專利性主題之國際協調問題
Student thesis: Doctoral Thesis
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Award date | 16 Feb 2015 |
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Permanent Link | https://scholars.cityu.edu.hk/en/theses/theses(57576c72-510e-495c-993c-ff16c82a33f0).html |
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Abstract
Patentability is one of the most controversial issues in patent law and deserves much
discussion, research and reflection. Patent law specifies the general field of subject
matter that can be patented and the conditions under which a patent may be granted. In
the development of patent law, the scope of patentable subject matter should be
reviewed regularly to correspond with the advancement of new technologies which are
bound to continually test the boundaries of patentability. For example, the Supreme
Court of the United States has recently ruled that naturally occurring genes are not
patentable, but cDNA is patentable as it is a man-made copy of the genetic messenger
in cells. Although patent protection is territorial in nature, technology development,
which generally has no boundary, will affect all human beings around the world, and it
may cause some classical problems and new challenges with respect to the
patentability of new technologies.
The aim of this research is to re-examine whether diversities in the area of patenting
biotechnology are problematic and, based on the discussion, further explore how to
harmonize the patentability of biotechnology at the international level. By adopting the
methodology of Martin Boodman, the first part of this dissertation reviews the
literature of patentable subject matter and the new challenges triggered by the
development of modern biotechnology. As to the theory of harmonization, three features,
including the preservation of diversity, the formation of a harmonized whole
and the requirement of consonance, will be introduced and then applied to the analysis
in this first part.
The second part starts with a review of the global diversities of patenting
biotechnology and compares the TRIPs minimum standards and the different
approaches taken by the US, the EPO countries and China. The findings show that
those diversities have brought some disharmony problems to patentability in respect of
biotechnology at an international level. With the aim of addressing these problems, it is
concluded that a more harmonized framework between the Convention on Biological
Diversity (CBD) and the TRIPs Agreement would be more meaningful with respect to
international harmonization of patentability from a problem-solving perspective in the
era of modern biotechnology. It is further observed that international substantive
harmonization of the patentability of biotechnology would mostly depend on the
application of the key issues of appropriability and access. Finally, this dissertation
analyzes the new domestic and international situations faced by China, and highlights
the necessity and significance for China to fight for better appropriate and accessible
patentability for biotechnology under the international patent system.
- Law and legislation, Patents (International law), Biotechnology industries, Patents, Biotechnology