Under article 27 (3) (b) of the TRIPS Agreement ([1]), Member States may exclude from patentability plants and animals, and biological methods that are used in their production processes such as pollination and fertilization and hybridization.
This provision is consistent with the principles prescribed in the legislation of most countries, which confirms the inability of organisms and natural means that are used in their production to get the patent. Has been decided by the patent laws in most European countries ([2]), citing Article 53 (b) of the European Convention on the grant of the patent (Munich agreement of 1973) ([3]).
Is not limited to the scope of the exception set in Article 27 3 (b) of the TRIPS Agreement on varieties varieties races or races or types of species of plants and animals, but also includes plants and animals themselves. And then Member States may be excluded from the ability to obtain a patent plants and animals found in nature in various forms and shapes and types, as well as plants and animals that are changing the genetic characteristics through gene transfer ([4]) transgenic plants and animals.
([1]), Article 27 (3) (b) of the TRIPS Agreement as "3 - Members may be excluded from patentability of the invention the following: (a) ... (b) plants and animals other than microorganisms, and biological methods 's mostly for the production of plants or animals other than non-biological and roads and micro-biological ..."
([2]) has decided to patent law French issued in 1968 this provision in Article (7) Paragraphs (b), (c).
(31) It is worth noting that U.S. law allows the granting of patents on plants and animals, and then the level of protection set in the law exceeds the levels of protection provided in the legislation of European countries, as the level of protection than scheduled in the TRIPS Agreement. However, development occurred in European law after the European Parliament issued a European Directive No. 98/44 on July 6, 1998 on the protection of inventions relating to biotechnology, and passed a European directive to protect animals and plants resulting from the use of genetic engineering by a patent, provided that the application of the invention is limited to plant or animal one. See:
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnology inventions.
([4]) See: South Center, The Trips Agreement. A Guide for the South.
التسميات
Intellectual property