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« Court Report | Main | Federal Circuit Hears Oral Argument on Tafas Appeal »

December 08, 2008

Comments

"Generally, the European approach to biotechnology patenting has not inured to the benefits of its citizens or innovation in Europe."

How healthy are Europe's citizens compared to, say, the citizens of Texas where the approach to biotech patenting is much more liberal?

Dear Bert:

Can't speak for Texas generally, but "health" is not something we can assess looking at biotech alone. You could ask Texans suffering from breast cancer (Herceptin), or anemia (EPO), or any other of the dozens of biotech products on the market.

I was speaking about the potential that investors will risk capital to fund the companies that produce candidate drugs; while any particular drug may fail in the clinic, the more that try the more likely there will be successful ones. Like it or not, drugs to treat the really big diseases need pharma, and pharma needs biotech, and both need money from investors. And investors want some reassurance that they will recoup their investment. Patents contribute to that.

Thanks for the comment.

Kevin: ""health" is not something we can assess looking at biotech alone."

And vice versa, which was my point. When you referred to the "benefits" of European citizens being compromised by the European "approach" to biotech patents, I assumed you meant health. Surely you weren't referring to financial benefits.

Looking into the intricacies of the decision in banning patents on stem cells and embryonic stem cell, it seems that Europe is successful in incorporating ethics in intellectual property law. The advocay of europe echos "Everhthing under the sun made by man is patentable if it is not aganist public order and morality" Probably US is very flexible in ancouraging patents on stem cells where there are no vehament stands on ethics and morality. But in Europe and other developing counries like India whee ethics and societal standards always play a great role in the society might say no to stem cell patenting

Dear Bert:

Actually, I was talking about financial benefits, but not on the personal level. Rather, it is in the interest of European citizens to have their own robust regenerative medicine industry, and to have investment in such companies. I think these opportunities will be diminished as a result of the EPO Board's ruling. We will have to wait and see whether EPC countries like the UK and Sweden that permit stem cell patenting under their national law fare better than countries like France and Germany that do not.

Thanks for the comment.

Dear Professor:

I don't think Americans are less ethical than citizens of other countries; I think the pluralistic nature of the US, and the recognition that ethics is a concept fraught with cultural and religious biases that are hard to reconcile in a country where everyone has an opinion. These questions are best left to an individual's conscience, and our law, particularly patent law, is better off without vague concepts like "public order." (Perhaps it is also because our history tells us that such concepts can be manipulated by the majority to the detriment of minorities.)

Thanks for the comment.

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