Biopatent Law: European vs. US Patent Law by Ulrich Storz, Martin Quodbach, Scott D. Marty, Derek E.

By Ulrich Storz, Martin Quodbach, Scott D. Marty, Derek E. Constantine, Matthew Parker

SpringerBriefs in Biotech Patents provides well timed studies on highbrow houses (IP) concerns and patent facets within the box of biotechnology. This quantity specialise in specific elements of the U.S. patent legislations, that may have great ameliorations in comparison to the ecu legislations. This contains questions of biopatent prosecution, novelty, creative step, written disclosure and sufficiency of enablement in addition to questions of legislation enforcement of biotech patents.

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Biotechnological cases do not differ from patents concerning other technical fields in this respect. 2 Dependency on Expert Opinions An infringement action (as well as a nullity action) will be delayed if a court has to obtain a written expert opinion. This can in particular affect biotechnological cases. Extensive chemical and biological knowledge cannot be presumed if an infringement court panel only includes judges with a legal education/training. It is generally time-consuming to determine an adequate expert, to wait for the written opinion and to hear the parties’ opinion after the opinion is handed to the court and the parties.

Therefore, the preparation of a complaint needs to take into account that the court might not have gotten in contact with the technical background of the invention before. Further, the facts of the infringement have to be made clear in a manner that leads a judge step by step to the opinion that the patent indeed is infringed. With regard to biotechnical cases, this often requires to use expert opinions and analyses before filing a lawsuit. The defendant will probably try to question not only the infringement itself but also the basis of the allegations brought forward by the plaintiff.

The USPTO will then attempt to find a prior art reference that contains each element of an individual claim. C. § 102(a) (2006). 46 S. D. Marty et al. unlike other patent systems, the US system is only concerned with use or public knowledge in the USA. Published works are another story, though. 24 The USA broadens its scope here by considering the entire world, and the USPTO and US courts have taken a very broad view of what is considered ‘‘public’’. 25 A simple way to view this requirement is that, if a document has been published in any language in any country, it probably can serve as prior art and destroy novelty of a later invention—assuming of course that it discloses the invention in question.

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