Patenting the Recombinant Products of Biotechnology and Other Molecules

This work examines the requirements for patentability in the context of biotechnology, with a special focus on non obviousness. Reviewing the relevant case law, it analyses thoroughly non obviousness as applied to biotechnology molecular products. It first offers a typology of recombinant inventions, useful in determining ultimate non obviousness and patentability. Three categories of recombinant products are distinguished. "e;Translation"e; inventions, obtained by entering a known molecular information into a known process. "e;Molecular modification"e; products, obtained by modifying prior art molecules. "e;Combination"e; inventions, obtained by combining several known functional molecular units. Recognizing that many "e;translation"e; inventions are at risk of being considered obvious upon maturation of the underlying technology, the author examines possible alternatives for protection. The avenue : consisting in lowering the non obviousness standard, chosen by the Federal Circuit in In re Deuel, is rejected in a detailed critic of the case. Several current examples of sui generis intellectual property rights are then described. A "e;no action"e; scenario is also examined, emphasizing that the rapid changes occurring in biotechnology night ultimately make the current problem obsolete. Finally, broader issues such as the growing secrecy in basic science are acknowledged, and linked to the disappearance of a clear distinction between basic and applied research.