What can be the effects of broad claims in animal breeding?
Although the few wide patents found today in this field particularly concern animals used as experimental models or bioreactors, there are also some examples of wide patents regarding breeding of farm animals.
For instance in aquaculture, one patent claims "all transgenic fish" expressing a growth hormone gene. Wide claims are also numerous in patents covering animal genes, such as genes encoding bovine prolactin, porcine growth hormones or salmon growth hormone, which already seem to be protected by a large number of potentially overlapping patents.
A first inventor has a patent on the gene and its use, which is described in a relatively abstract manner ("the muscular growth regulation function operated by the myostatin gene"). A second inventor holds claims on a more specific part of the same gene for a more specific application ; a third one...etc.
In some of the above examples, the wide monopoly is legitimate because if the inventor was only protected for what he actually achieved - a specific transgenic salmon or a specific gene - anyone could freely carry out his invention by using a slightly different gene performing the same activity or by crossing the patented gene into a different species. The patent would therefore be commercially worthless. From a business perspective, wide claims are therefore essential to obtain effective control of breeding technology. But with regard to the future of research and development in this field, important questions must still be answered.
For example, should insertion of a growth hormone gene into a pig always be a basis for claims over other farm animals, even if the effectiveness of the transformation techniques on these other strains may not be known at the time of patenting? In a similar vein, in a research sequence moving from a relatively abstract idea - for ex. "a fish gene having an antifreeze function" - to detailed implementation - a more precise description and application of this gene -, who should have what rights? As a matter of fact, excessively wide monopolies can prevent the useful improvement of inventions. Several patent-law directions should be considered by patent offices and courts, such as a strong non-obviousness principle and a reasonably limited scope of patent claims.
For instance in aquaculture, one patent claims "all transgenic fish" expressing a growth hormone gene. Wide claims are also numerous in patents covering animal genes, such as genes encoding bovine prolactin, porcine growth hormones or salmon growth hormone, which already seem to be protected by a large number of potentially overlapping patents.
A first inventor has a patent on the gene and its use, which is described in a relatively abstract manner ("the muscular growth regulation function operated by the myostatin gene"). A second inventor holds claims on a more specific part of the same gene for a more specific application ; a third one...etc.
In some of the above examples, the wide monopoly is legitimate because if the inventor was only protected for what he actually achieved - a specific transgenic salmon or a specific gene - anyone could freely carry out his invention by using a slightly different gene performing the same activity or by crossing the patented gene into a different species. The patent would therefore be commercially worthless. From a business perspective, wide claims are therefore essential to obtain effective control of breeding technology. But with regard to the future of research and development in this field, important questions must still be answered.
For example, should insertion of a growth hormone gene into a pig always be a basis for claims over other farm animals, even if the effectiveness of the transformation techniques on these other strains may not be known at the time of patenting? In a similar vein, in a research sequence moving from a relatively abstract idea - for ex. "a fish gene having an antifreeze function" - to detailed implementation - a more precise description and application of this gene -, who should have what rights? As a matter of fact, excessively wide monopolies can prevent the useful improvement of inventions. Several patent-law directions should be considered by patent offices and courts, such as a strong non-obviousness principle and a reasonably limited scope of patent claims.
