Sir: It is incorrect to suggest in your article "MEPs reject gene patenting" (2 March) that the decision of the European Parliament to reject the European Biotechnology Directive marks an end to the possibility of securing patent protection in Europe for human genes or cells. The European Patent Office (a non-EU body to which all EU members subscribe) has granted several patents relating to human genes and, indeed, recently upheld such a patent despite a legal challenge that it was unethical.
The EPO decides whether a gene can be patented on the basis of criteria which are applied to all types of invention, namely whether it is new, not obvious and has a practical use. The origin of the ill-fated Directive lay in part as a response to concerns that different or additional criteria should apply to the patenting of human genes, in particular moral criteria.
Although the EPO may also refuse patents on moral grounds, it has declined to do so where the invention relates to technologies that are both permitted and tightly regulated by other laws in member states. It is probably right in the long term that all inventions be assessed by the same criteria for patentability. These criteria can be traced back to the first UK patent law of 1624 and have been able to accommodate 20th-century industries in electronics and pharmacy.
The EPO has proved capable of determining the patentability of biological inventions without the need of a special Directive from Brussels, and this does provide some level of certainty for industry, which would have faced further confusion had the Directive been passed.
The writer is a Patent Attorney specialising in biotechnology.Reuse content