Comment Whilst patents do give broad protection to the general underlying concept, it is sometimes difficult in the biotech field to obtain any protection at all let alone a broad protection. This is often due to contributions to the state of the art made by other researchers through their publications or even by the patentee's own publications coupled with the European requirements for there to be a problem which must have been solved. To the EPO, DNA per se is obvious and therefore the inventor needs to point to something more than the mere cloning of DNA using known techniques in order to achieve an inventive step. This means that many transgenic plants will not be protectable using the patent system. The plant varieties protection will only apply to stable new varieties.
Protection now extends to other varieties which are derived from the protected variety.
However, if a third party can achieve a comparable variety by starting from scratch then the plant variety legislation provides no protection. This article first appeared in IP eye , the intellectual property newsletter published by Eversheds Solicitors. To respond to this article, click here . Responses will be posted at the bottom of this page. The Eversheds National Bioscience Group is a multi-disciplinary team of business lawyers with extensive experience of the legal and regulatory issues that face the bioscience industry.