The importance of patents in biotechnology – John Butcher

21 February 2020 by

The following article comes from a student of IP law at Georgetown University in Washington DC. Although somewhat outside the range of subjects usually covered by UKHRB I feel it is sufficiently important to keep up to date with this difficult and fast moving area, as law tries to keep pace with technological developments in this field. So here we have John Butcher’s survey of the field.

Inventors come from many different disciplines and fields of study. Arguably one of the most important are biotechnicians whose inventions dramatically help to improve our standards of living. From healing the body of diseases to restoring the environment, biotechnology pervades all aspects of life. 

While that sounds really nice, you might be wondering what exactly falls under biotechnology?

What is Biotechnology?

Biotechnology in the United Kingdom is the industry of organisms that manufacture commercial products. Interestingly, it can be quite controversial at times i.e. stem cells and gene cloning. Despite this, biotechnology is integral to advancements in the healthcare and pharmaceutical industry. 

Currently, most industrial biotechnological expenditure in the UK is in the field of healthcare. Consequently, the UK is the leader in Europe in the development of biopharmaceuticals – by quite a lead.

By using nature’s own toolbox i.e. genes, elements, microbes, etc., biotechnology seeks to improve the lives of everyone around the globe. Essentially, it’s harnessing nature and shaping it in order to improve our way of life. 

But biotechnology isn’t only about using resources until they’re all gone, instead we’ve found ways to assist nature’s processes e.g. insecticides, water and air purifiers, as well as crops capable of denser propagation. 

For more information on how the UK is great for biotechnology, see here.

Why is it Important?

Now, obviously nature doesn’t care if we do these things to help it – so why do we? 

  • Biotechnology reduces rates of infectious diseases;
  • saves children’s lives;
  • cuts greenhouse gas emissions;
  • produces food free of allergens; and
  • improves the content of food for increased cardiovascular health. 

In short, biotechnology heals the world. And it does so because it works off the progress people before have supplied.

A recent example within the UK is at OMass Therapeutics, a private biotech company in Oxford, whose irresistible moniker is “biology in flight”. The company is designing small molecule drugs to treat immunological and genetic disorders. OMass is utilizing a technique called “native mass spectrometry,” which is an advancement from regular mass spectrometry. It essentially allows them to identify key proteins and how they behave in the body. This information allows the biotechnicians at OMass to observe how the drug reacts with them much more closely, thereby determining, if necessary, what changes to make.

In this instance, OMass is utilizing the knowledge and techniques of those before them. They’re doing this in order to continue the work of treating health problems with prevalence today.

It’s evident, if you invent a new compound or means of solving a problem, it is imperative to choose to get a patent. Because patents, as opposed to trade secrets, allow for others to view and improve upon your ideas. In an altruistic sense, they allow for the continual improvement of technology and life.

For more info on contemporary efforts in biotechnology, see here.

Biotechnology Patents

But what exactly are biotechnology patents, how do they work, and how do you get one? 

One huge obstacle for obtaining patent protection for, say, a stretch of coding DNA such as the BRCA mutated gene for Breast cancer “discovered” by the US company Myriad. There have been a number of ferocious attacks on the US Patent Office’s decision to grant the company patent protection, because on of the first rules militating against such a grant is that what is found in nature, does not contain an “inventive step”. The literature on the Myriad litigation is myriad and there is no scope to go into it here but it is a landmark case because the US court considered the isolation of the “exons” – the stretches of genes that actually code for proteins – away from the “introns” – the “silent genes” ,which we are no longer permitted to describe with the perjorative terminology “junk DNA”, was a sufficiently inventive step to allow them their patent protection.

Technically, biotechnology patents are considered utility patents. This type of patent – a utility patent – is available for processes, machines, forms of manufacture, and compositions of matter. To elaborate further:

  • Process: these are a set or series of acts that are in order or a sequence. Ultimately, through following these, one thing is transformed into another, be it a state of being, characteristic, or property.
  • Machine: the combination of subparts which carry out a process. An easy way to think about this is if the process is a recipe, then the machine is an oven.
  • Manufacture: when you take raw materials and change, or assemble, them with regard to their form or physical properties. An example would be a chair that has been pieced together by shaping wood.
  • Composition of matter: the combination of one or more substances so that they form a chemical union, thus transforming them at the atomic level.

Furthermore, utility patents need to satisfy a few criteria. That is, they need to demonstrate to the UK’s Intellectual Property Office (IPO) that these inventions are novel, useful in a practical way to a field, and non-obvious. It can’t be understated how important it is to emphasise the degree to which an invention improves something or solves a problem. Otherwise, they are considered too obvious or simply unuseful. 

For more information on patents in the UK, see here.

Importance of Patenting

Patents provide inventors twenty years of exclusive rights to make, use, and sell their inventions. Some of the most favorable aspects include:

  • Creating barriers for similar products in the marketplace.
  • Enhances a company’s value.
  • Opportunities of generating licensing revenue.

Research and development (R&D) of any technology is usually an expensive endeavor. It’s no surprise then, companies sustain heavy losses throughout the R&D period. Their hope is to eventually recover those losses when they begin selling their invention.

Fortunately, while R&D may be expensive, production and imitation are relatively cheap. Hence, it is imperative the compound be patented less anyone wants their compound reverse engineered and distributed earlier.

Not only is there the financial aspect of having a monopoly on a product in the market, but there is also the more altruistic component of sharing knowledge with other inventors with which to create even better ideas.

One compound that’s shared leads to another. Medication that heals a disease with potentially risky side effects can be improved and the risks reduced. Surgical procedures dependent on harmful doses of medication can be substituted for something much less potent while maintaining the same inoculating component. This is the nature of advancements in science and technology.

To summarize, patenting makes life better for everyone.

Importance of a Patent Attorney

Patents are indisputably important for any inventor to obtain. Unfortunately, many don’t appreciate the complexities of how to get a patent. Many people attempt do-it-yourself type patent applications that usually get rejected, or worse, pass with extremely narrow claims that allow competitors to profit off their idea. Hence the importance of getting a patent attorney. 

The following paragraphs describe the process of instructing a patent attorney in the United States, but they are not dissimilar to the requirements in the United Kingdom.

J.D. Houvener, founder and CEO of Bold Patents Philadelphia Law Firm, stresses “the assistance of a patent attorney is imperative for an inventor to obtain the benefits of widely applicable claims that will prevent competitors from entering anything similar in the marketplace.”

Not only for protection, but for expediency, a patent attorney’s help is essential. They have the most experience to earn fast rates of approval for applications that can at times take up to four years. 

Obviously, this amount of time can be devastating to anyone’s business. Invest in your business today to prevent unnecessary amounts of stress and loss of profits in the future.

In Conclusion

Biotechnology does a great deal of good for the world. As such, we owe it to the inventors to allow them to profit off their ideas as well as we have. Thus, the importance of patenting: twenty years of exclusive rights to make, use, and sell their inventions in the marketplace.

Without patenting in biotechnology, compounds would be considered something more along the lines of trade secrets – no one except the owner would know how something is made or done. Entertaining this perspective doesn’t allow for advancements in technology, therefore, no substantive improvements in life. When we work together and share information, we can accomplish much more.

However, patents can be very tricky to navigate. Even if someone is successfully granted one on their own, competitors of larger businesses often find means to circumvent infringement laws and use another’s idea for their personal gain.

Hence, the importance of getting an experienced patent attorney’s help. These are professionals who spend years studying legalese and know the ins-and-outs of the IPO. So the best choice for yourself and your business is being thorough from the start. It’s the route that’s going to make you the most profits… and save you a lot of headaches. 

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: