Patentrecht und landwirtschaftliche Tierzucht: Grundlagen, Problembereiche, Handlungsempfehlungen. Gemeinsame Stellungnahme des Forschungsprojekts „Biopatente in der Tierzucht” und des Friedrich-Loeffler-Instituts für Nutztiergenetik

Abstract

The basic idea of patent law is the granting of a temporary monopoly in exchange for the disclosure of new knowledge. In the area of animal breeding and production, however, technical inventions interact with biological processes to create new products and methods. Patent law hence contains a number of specific provisions for agricultural plant and animal production; these are, however, only partially effective due to critical definitions lacking or being unclear. As a result, patent law does not exert the expected incentives for but often even barriers to innovation. On the one hand socially desirable long-term breeding programmes cannot be sufficiently protected. On the other hand there are incentives to use patents and patent applications to firm up market power. As a result, five problem areas have emerged: 1.) ethical objections against the granting of patents on plants, animals and traditional breeding methods, 2.) the granting of invalid patents; 3.) ambivalence when the categories from patent law are applied to animal breeding and production; 4.) asymmetries in the patent procedures and 5.) reinforced large-scale monopolisation in agriculture and negative impacts on the innovation process. To address these problems a number of measures are recommended: 1.) to introduce the concept of ‘registered lines’ as a specific form of protection for animal breeders; 2.) various measures to ensure that applications for biological patents are decided adequately and timely; 3.) conceptual clarification of the concept of ‘animal variety’ in patent law; 4.) a more adequate definition of biological processes which are excluded from patentability; 5.) an effective breeder’s and farmer’s exemption; 6.) international harmonisation of the law; and 7.) support for financially challenged parties in patent proceedings in order to ensure that the patent system is equally accessible to all those affected.