Dutch challenge to EU biotech Directive

Earlier this summer, Advocate General Francis Jacobs handed down hisopinion on the action brought by the Netherlands against the European parliament and the Council of the European Union seeking annulment of Directive 98/44 on the Legal Protection of Biotechnological Inventions (Marketletters passim). This Directive, which both the Netherlands and Italy voted against, requires EU member states to protect biotechnology inventions under national patent laws.

Explaining the situation, international law firm Linklaters & Alliance notes that the Netherlands objected to the notion that plants, animals and parts of the human body may be patentable, and feels the right to a patent in the biotechnology field should be limited to the process and should not be extended to the products derived therefrom.

The Advocate General considered that the Directive is concerned primarily with the patentability of biotechnological inventions and not with their use. The holder of the patent will still need to comply with national laws when making, using or selling the invention. As the Directive is concerned with the conditions under which biotechnological inventions may be patentable, it is not, he stated, the proper place for providing rules on the ethical monitoring of research or the commercial use of its results.