Eräitä uuden kasvibiotekniikan keksintöjä vuosina 1979—1986 jätetyissä patenttihakemuksissa

Authors

• Kirsi Pohjalainen Labsystems, Pulttitie 10, 00880 Helsinki
• Sisko Knuth Alko Ltd., Tutkimuslaboratorio, PL 350, 00101 Helsinki
• Tuula Pehu HY/Biotekniikan Instituutti, Karvaamokuja 3, 00380 Helsinki
• Helge Gyllenberg HY/Mikrobiologian laitos, Viikki, 00701 Helsinki

DOI: https://doi.org/10.23986/afsci.72370

Abstract

The situation of modern plant inventions and their patentability. In the past several years a very large potential has developed in the field of modern plant technology using the methods of genetic engineering and this has created some problems for the legal protection of innovations in plant biotechnology. The plant variety protection (the UPOV Convention, 1961, UPOV = International Convention for the Protection of New Plant Varieties) effective in most European countries except Finland has limited means for the protection requirements of modern plant technology. The protection does not extend to the saving of seed from a current crop for sowing in a later season nor prevent the use of the protected plant variety as a material of further variation. The European Patent Convention (Article 53 b 1973) states that patents shall not be granted for plant varieties or essentially biological processes for the production of plants but microbiological processes or new products of such processes may be patented. At the moment plants, if not determined as plant varieties, can be protected under the patent system. For these reasons there has been a debate about definitions “essentially biological process” or “the new product of a microbiological process” and there is a need for reevaluation and reinterpretation for these determinations. The purpose of this survey was to elucidate from patent documents concerning plant molecular genetics the situation of modern plant inventions and their patentability, i.e. what kind of protection was claimed for and how were the inventions described and exemplified compared to claims. The material comprised 9 US-patents and 40 patent applications published by the European Patent Office (EP) within the years 1971 and 1986. Patent documents considered in this study seldom described inventions achieving new, remarkable changes or characteristics in plants although that is particularly the aim of the new plant biotechnology. Only two documents showed inventions where new useful genes were expressed in regenerated plants. A common feature for the verification of the inventions was that transformed plant cells or tissues were not regenerated to whole plants. Yet patent protection was claimed for these objects. On the basis of this survey and the examined patent documents it seems that in plant biotechnology the most work has been done in improving methods of gene transfer system. Yet the patent documents were within years 1971 and 1986 and since then the research has often reached the goal: whole new plants with beneficial characteristics has been developed and as the legal protection in plant biotechnology has been insufficient clarification and improvement of the European law is desirable.