WHEN IN DOUBT, DO NOWT

The European Commission has adopted a second report (COM(2005)312) to the Council and European Parliament covering developments and implications of patent law in the field of biotechnology and genetic engineering. The Commission is obliged to file such reports periodically under the terms of the Biotechnology Directive 98/44/EC. The Commission found as follows:

*Gene sequences – the Commission won’t take a position on whether, in choosing to take a restrictive or wide view to patenting gene sequences, the Member States’ implementations of the Biotech Directive are invalid.

*Human DNA patenting – the Commission has launched a study on will investigate the extent of human DNA patenting in European and its effect on R&D.

*Stem cells – it is too early to reach a conclusion on whether there is a need for further harmonisation with regard to whether inventions relating to stem cells that are incapable of becoming a human being should be patentable and the matter will be kept under observation. Stem cells which are capable of becoming a human being are excluded from patentability under the terms of the Biotech Directive.

*Implementation by Member States - Italy, Luxembourg, Latvia and Lithuania have not implemented the Directive.

The IPKat thinks that, considering the controversial nature of the matter, the Commission’s cautious approach is understandable. However, if certain biotech inventions are patentable in some EU jurisdictions but not others, this forms a real barrier within trade between the Member States.