The natural, the informational, the claimable?
human body material in us and European patent law
pp. 215-236
in: Bart van Klink, Britta van Beers, Lonneke Poort (eds), Symbolic legislation theory and developments in biolaw, Berlin, Springer, 2016Abstract
In this chapter we review recent developments in patent law in the US and Europe in relation to the patenting of "isolated" human body materials, noting the tension in patent law between its general aspiration of promoting the (bio) economy while at the same time ring-fencing products of nature from effective monopolisation by patentees. Central to this is the proposition that patents should be granted for "inventions' but not for "discoveries", two symbolic terms that lack clear definitions. We find that hard law has been used in Europe to define a boundary between these categories that is industry-favourable – mere isolation transforms a discovery into an invention. By contrast, in the US, the Supreme Court has rejected this view, a view that was dominant for a century in US practice, considering that something beyond mere novelty over the natural material in its natural environment is required – some act of invention must have occurred.