Science Invention Patent
August 30, 2011
Biotechnological Patents, Chemical Sciences Patents, Medical Sciences Patents
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Science Patent Application
A science patent can be awarded if the requirements for patentability have been met. The following cannot qualify for patentability and as such cannot be registered as science patents:
- Mathematical formulas and scientific theories.
- Information presentations.
- Metabolism of organisms.
- Discoveries of natural phenomena.
- Methods for doing business.
- Methods for performing mental acts.
- Rules for playing games.
- Computer programs.
- Biological processes.
- Medical methods for treatment of humans & animals such as therapies or surgeries.
It is possible to register a science patent in the field of bio-technology or engineering for non-living entities such as DNA, promoters, antibodies present in organisms, vectors and plasmids as well as polypeptides.
One can also register a science patent for living entities in the case of genetically modified plant, organism and animal cultures subject to meeting specific requirements.
It should be noted that genes and various forms of such are still debated and it is recommended that you approach an intellectual property attorney to help you register a science patent in the bio-technology field as it is a rather complicated process.
Our experienced patent attorneys can assist not only with registration of a science patent, but also with legal advice regarding the patentability of matter in this field.
For the filing of a science patent it is also recommended that you file a provisional application as soon as possible to ensure priority date. The patent applications involve detailed descriptions of the inventions, drawings and claims in the case of permanent patent applications.
You will have 12 months from filing the provisional application to file the complete science patent application. During the 12 month period you can further develop such and get a chance to complete the claims.
Contact us at Smit & Van Wyk for expert legal advice and assistance in filing a science patent in South Africa and abroad
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Human Gene Patent
August 8, 2011
Biotechnological Patents, Inventions, Patents
Image source: desktopdna.org
Patented Human Genes
The United States Court of Appeals ruled that human genes can be patented. It has reversed a federal district court’s ruling on the lawsuit.
Myriad Genetics is a molecular diagnostic company and they have successfully obtained patents for two human genes (BRCA1 / BRCA2).
These genes are used to predict a women’s risk in developing breast and ovarian cancer.
The plaintiffs claimed that human genes are a product of nature and that Myriad Genetics only isolates DNA from the body rather than creating something new.
The Lawyers of Myriad Genetics argued, using a baseball bat as an example:
“One could say that it is extracted from a tree, but in that case the process of extracting the baseball bat necessarily changes the nature, form and use of the tree and thus results in a manmade manufacture, not a naturally occurring product.”
The Lawyers of Myriad Genetics continued saying the isolated gene (BRCA1 / BRCA2) cannot be found in nature and therefore it is patentable.
The court agreed with Myriad Genetics
Judge Alan Lourie said “an isolated DNA has a markedly different chemical nature from the native DNA. In this case, the claimed isolated DNA molecules do not exist as in nature within a physical mixture to be purified. They have to be chemically cleaved from their chemical
combination with other genetic materials. In other words, in nature, isolated DNAs are covalently bonded to such other materials. Thus, when cleaved, an isolated DNA molecule is not a purified form of a natural material, but a distinct chemical entity. In fact, some forms of isolated DNA require no purification at all, because DNAs can be chemically synthesized directly as isolated molecules.”
On 29 July 2011 the United States Court of Appeals for the Federal Circuit made their decision and ruled that Myriad Genetics patents are valid.
BRCA1 & BRCA2
BRCA1 is a human caretaker gene that produces a protein called breast cancer type 1 susceptibility protein, responsible for repairing DNA. BRCA1 is expressed in the cells of breast where it helps repair damaged DNA.
BRCA2 belongs to the tumor suppressor gene family and is involved in the repair of chromosomal damage with an important role in the repair of DNA double strand breaks.
Although the structures of the BRCA1 and BRCA2 genes are very different, the proteins made by both genes are essential for repairing damaged DNA.
Research suggests that both the BRCA1 and BRCA2 proteins regulate the activity of other genes and play a critical role in embryo development.
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Biotech Patents
August 8, 2011
Biotechnological Patents, Chemical Sciences Patents, Diagnostics Patents, Genetic Engineering Patents, Medical Sciences Patents, Microbiological Sciences Patents
The biotechnological patent will afford patent monopolies to inventors who have invested in new or better solutions to existing problems.
The patent system stimulates innovation, as competitors advance the field. Biotech patents have been instrumental in fostering advances in technology.
All inventions must be novel, inventive and useful in order to be eligible for patent protection.
Biotechnological or life sciences inventions are no exception and it is the manner in which these requirements are addressed that can curb or extend the biotech patent protection you acquire.
Certain sections of the patent legislation deal specifically with inventions relating to biological processes.
Only inventions and not discoveries are eligible for biotech patent protection. (an invention goes further than a discovery, as it provides a practical application of the discovery.)
Isolated DNA sequences and other metabolites are usually viewed in patent terms as chemical compounds, much like a new organic drug molecule.
The unique sequence of the nucleotides or amino acids that you have uncovered constitutes a novel biological molecule and may thus be patentable.
Vectors containing your nucleotide sequence and cells containing the vector / DNA may also be patented, provided they are new.
Microbiological Sciences Patents
The South African patent law provides specifically for the patenting of microbiological processes.This includes genetically modified organisms.
New microbes that you have isolated, purified and cultured are generally considered patentable, provided they can fulfill the usefulness patent requirements.
Diagnostics Patents
Primers used for diagnostic purposes and kits containing such primers may be protected by way of patents.
Single nucleotide polymorphisms and expressed sequence tags may under certain strict conditions be considered patentable and of use in diagnostics.
Novel antigens and receptors that you have located may also be protected by way of a patent, provided you have ascribed a function to them.
Novel monoclonal antibodies and immunological tests, such as ELISA tests, using novel antibodies are also worthy of biotechnological patent protection.
Pharmaceutical & Chemical Sciences Patents
Novel purified chemical or pharmaceutical compounds are patentable, as well as their pharmaceutically acceptable isomers and salts.
Crude extracts in which a compound is enriched may also be patentable, depending on the level of enrichment relative to the natural, unfractionated state. Importantly, novel pharmaceutical carriers may also be patented.
Patent protection may also be obtained for pharmaceutical compositions containing your novel pharmaceutical compound.
Medical Sciences Patents
Due to the medical patent restriction on methods of treatment, diagnosis or surgery, surgical techniques are specifically excluded from patent protection in these regions.
Instruments for use in surgery, diagnosis or therapy may be patented.
Plant & Animal Sciences Patents
You cannot obtain biotechnological patent protection for plant or animal varieties, or essentially biological processes for the production of plants or animals.
It appears from the European Biotech Directive and the UK Patent Office practice manual that patent claims to genetically modified plants are allowable in a biotechnological patent application.
Should you have originated a new plant variety by conventional breeding, this may be protected by way of a Plant Breeders’ Rights application in South Africa, and not a patent.
Biotech patent claims to animals obtained by traditional breeding methods are not allowable at most Patent Offices, but a genetically modified animal is considered patentable in the UK, Europe and USA.
There is currently no equivalent in the animal sciences field to the protection offered by Plant Breeders’ Rights.
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