The Ramifications of the Advocate General's Opinion in the Oliver Briistle Case

摘要

The scope of patent protection available in Europe is in doubt after the Opinion of Advocate General Bot in Oliver Briistle v Greenpeace eV (C-34/10) (March 10, 2011). The case concerns the availability of patent protection for biotechnology inventions under the Biotechnology Directive. European patent law is largely a creature of the European Patent Convention, not of Community law, and consequently the European Union has had little influence on the development of European patent law. However, in the dynamic and significant area of biotechnology, the European Union has influenced the availability of patent protection through the Biotechnology Directive, which prescribes what can and cannot be protected. The Biotechnology Directive seeks to balance competing considerations by providing sufficient patent protection for cutting edge research while acknowledging that certain inventions should not be protected on moral or ethical grounds. The Briistle case is likely to represent a narrowing of patent protection available in Europe for biotechnology inventions on ethical grounds and raises concerns for the sector.