Abstract
Because of the active research on microorganisms, there is a large number of deposit number limited claims of microorganism strain patents; at the same time, the total amount of deposited strains has increased continually. However, the scope of protection of these patents is unclear, and there are many restrictions on obtaining the deposited strains. This paper begins with a Chinese case involving strain patent infringement, discusses the scope of deposit number limited claim of the strain and suggests that this kind of claim can be interpreted as "a strain that has the same specific characteristics as the strain deposited in qualified depository institution" to retain flexibility in judgment. Specifically, the full genomic sequence should first be considered as the compared subject unless it is unavailable, and random mutations in the sequence can be assessed under the doctrine of equivalents. As for the propagation, multiplication, and gene recombination of patent strains, 98/44/EC has established rules for treating derivatives from biological materials, which are worth applying in this area. If deposit number limited claim of strain could get a broad scope of protection, the furnishing of the deposited strain should be more convenient, and strict restrictions on furnishing the strain should be relaxed.
Highlights
In the late 19th century, microbiology was established
The first type is products containing living strains or their mixtures, for example, yeast for food fermentation; yogurt; edible fungus or algae; probiotics that can adjust the balance of intestinal flora; live microorganism pesticides for killing insects, bacteria or weeds; and live microorganism fertilizers such as nitrogen-fixing bacterial fertilizers
It is possible to obtain the strains through reverse engineering
Summary
In the late 19th century, microbiology was established. To date, microorganism strain inventions are prevalent, and the application of microorganisms has thrived in many areas, such as the food industry, medicine, environmental improvement, the biochemical industry, ecological agriculture, renewable energy, and mineral mining. The first type is products containing living strains or their mixtures, for example, yeast for food fermentation; yogurt; edible fungus or algae; probiotics that can adjust the balance of intestinal flora; live microorganism pesticides for killing insects, bacteria or weeds; and live microorganism fertilizers such as nitrogen-fixing bacterial fertilizers. From these final products, it is possible to obtain the strains through reverse engineering. In March 2020, the Beijing Intellectual Property Court of China decided the first deposit number limited strain patent infringement case [4]. This paper will start with this case and discuss the above issues
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