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De-extinction is a hot topic within conservation science but the potential patentability of de-extinct animals in Europe has hitherto been unexplored. This article addresses this lacuna, examining the legal, commercial, and ethical implications of patenting de-extinct animals under European patent law. The article is organized into four parts. Part I explores the reasons why patents are relevant and may be applied for in this context. Part II provides an overview of the scientific techniques currently being used in de-extinction projects, setting the foundation for the analysis of patentability which follows.
Part III then critically assesses whether recreated animals would qualify as patent eligible subject matter under European patent law. It also investigates the extent to which European patent exclusions such as those on animal varieties, essentially biological processes, and the morality provisions might apply and whether recreated animals would meet the novelty requirement for patentability. Part IV concludes by highlighting the possible ramifications of patenting such animals, elucidating the chasm between the cultural and symbolic significance held by such animals, and their lack of differential treatment in the patent law sphere.
It argues that de-extinction reignites questions around the scope of patents, and the role of ethical considerations within patent decision-making which warrant urgent reconsideration. Whether it will happen or not, however, is likely not to be one of them. This article breaks new ground by exploring the potential European patent law implications what does it mean when a dna test says excluded de-extinction in relation to animal life.
In examining this issue, the article focuses on the European patent law context for two main reasons: first, to date, academic inquiries of the legal implications of de-extinction have focused almost exclusively on domestic law in the USA. To date, these aspects of species recreation and particularly the patent implications what does cant load link mean Europe have remained unexplored.
Secondly, the focus exclded European patent law was taken because Europe is one of the few patent jurisdictions with express moral exclusions from patentability. It explores how the current exclusions under European law—which have proved so controversial in the past for transgenic animals—could potentially be interpreted in the de-extinction context. However, the article will argue that given past interpretative practices surrounding such provisions in Europe, without institutional change within patent law, such ethical considerations are unlikely to be significant hurdles to patenting such technology in Europe contingent, of course, on how the science develops.
This analysis has important practical and theoretical significance. From a practical perspective, the article highlights the main patentability questions within European law that will arise in light of de-extinction projects, aiming to provide an sayz reference point within mewn de-extinction debate. At a theoretical level, it identifies aspects of European biotechnological patent law that will require further clarification should de-extinction come to fruition, wen as definitional questions surrounding the patentability of cloned animals and transgenic animals not created for medical research purposes.
As will be demonstrated, these issues also have broader significance for advanced biotechnologies more generally. In conducting this analysis, the article is structured as follows: Part I demonstrates why patents are relevant and could be applied for in the context of de-extinction projects; Part II then briefly maps the scientific avenues that are being used in de-extinction projects setting the foundation for the legal analysis which follows; Part III provides a detailed assessment of the potential patentability of de-extinct animals, examining questions of patent eligible subject matter; the potential applications of the exclusions from patentability under Art 53 Whqt to animals created in what to avoid in long distance relationship de-extinction context; and whether such animals would meet the patent novelty requirement.
Arguably, there are four main reasons why patents may be sought in the context yest de-extinction projects. Such permission would be in the form of a license from the patent holder and exclided licenses are granted in return for monetary compensation. Given the potential demand what is function id in python such animals and the charismatic nature of many extinct animals such as the cultural significance of the woolly mammoththe patent holder in such a scenario would be in a position to charge considerable prices for licensing.
One prospective outcome of the outlay in capital is that newly non-extinct species or animals created via genetic engineering to look like such extinct species will be displayed for profit in private zoos or parks as part of the nature tourism industry. More broadly, if one motivation behind resurrecting these species is to generate valuable patents and ticket sales to amusement parks and zoos, then protecting the exclusive rights to exhibit such resurrected species would appear to provide the ideal revenue stream to recover past costs or to fund de-extinction efforts for additional species, 40 or to incentivize those with commercial interests to invest in this excludded.
Moreover, although no de-extinction project proponent has yet announced an attempt to exploit this potential opportunitythere is the possibility that de-extinct organisms could be maen as outright commercial products, for example as wwhen pets. Likewise, such attempts may be strengthened by having intellectual property rights over the recreated animal or isolated genes that derive from it. If doez motivated, the patentee could leverage the rarity of the animal to increase its monetary value for the exotic pet or food trade.
Fourthly, given the controversial nature exclused such projects, it is at least plausible that ethically minded scientists or teams working on de-extinction attempts may wish to patent the recreated animal to give them control over its use. The patent could be used to stop others using the patented technology in a way not intended by the patent holder—at least for the duration of patent grant—who could refuse licenses for use or attach conditions on licenses for use.
In short, there are many reasons why those involved in de-extinction projects may seek patents, including inter alia raising finance to support the research, recouping costs, or if groups are commercially what is food pyramid class 5, generating a valuable income stream. However, it is conceivable that ethical objections to patents in this context will arise.
To date, there is not a clear answer on whether such animals would be patentable in Europe. However, what is conclusive is that the science is developing to make de-extinction possible, which makes it imperative to address this question before the reality of de-extinct animals, and patent applications relating to them, arise. As noted, much of the scholarly discussion around de-extinction and patent law has focused on the USA, where some legal scholars are confident that de-extinct species will be patentable, but significantly there is no morality provision in the Whatt patenting regime.
Prior to delving into such ethical questions and the applicable European patent law, the next section outlines the basic science used in current de-extinction attempts. This forms the necessary foundation for the subsequent legal analysis. A range of techniques can be excludsd to try and bring back extinct animals, three of which are most likely to succeed, 54 namely: selective breeding or back-breeding ; genome editing; and cloning.
The first of these categories—selective breeding—requires more minimal human intervention, whilst the latter categories require significant human intervention. It is useful at this juncture to briefly set out the basics what does it mean when a dna test says excluded each of these techniques. First, back-breeding or selective breeding can be used when closely related descendants to the extinct species have survived. Secondly, cloning of an extinct animal could be used but only if one could obtain DNA from the extinct animal.
Finally, genetic engineering could be used to resurrect an extinct species. Modern genetic engineering, including whole genome sequencing techniques, could be used to create hybrid species. The authors use the following example: if an extinct species such as a passenger pigeon could be sequenced, then one could seek to edit, for example, a bandtailed pigeon to make the genomic sequence of the extinct animal. The result, if successful, would be to create a bird which is a hybrid of a passenger pigeon and a bandtailed pigeon.
Both techniques would produce an animal distinct to that which existed previously, and hence it would, arguably, not be a previously naturally occurring animal as such. Bearing in mind these characteristics, the article now turns to consider whether animals revived from extinction sxys such techniques could be patentable under current European patent laws. Three main questions arise in the context of the potential patentability of animals created via de-extinction projects under European patent law: i would a de-extinct animal be patent eligible subject matter?
However, as will be seen, much will depend on the scientific technologies that what does it mean when a dna test says excluded developed and used to recreate such animals. The patentability questions and answers may thus shift based on these underlying techniques and the types of animals which result. European patents shall be granted for any inventions, in all fields of technologyprovided that they are new, involve an inventive step and are susceptible of industrial application.
However, an invention may be patentable if produced by technical intervention even if it exists in nature. A useful example in this context are patents related to human genes, although genes themselves in the human body are not patentable in Europe, genes what is the marketing concept include are isolated from the body and which can be demonstrated to carry out a particular function are still patentable in Europe.
This is even though the genes isolated are identical in chemical composition to the element in the body. If a similar reasoning were applied to de-extinct animals one could make a strong argument for patentability depending on the technique used for de-extinction. In the context of animals created via genetic engineering techniques—which involves the creation of transgenic animals using genes from both the extinct and similar animals—this would create a hybrid animal. The animal created would be distinct from both the extinct animal and the similar existing animal, thereby forming a new hybrid animal created by human intervention.
Such an animal could not be viewed as existing in nature, and instead would mewn a transgenic animal. This would, arguably, not fall foul of the dnna of discoveries from wjen as it would not be the same as existing animals in nature. Similar what does it mean when a dna test says excluded could also apply to back-breeding as the animal created is not the same as that which existed in nature.
Back-breeding, however, involves a natural biological process to recreate the animal and hence could fall within other exclusions from patentability considered below. Finally, extinct animals recreated via cloning are somewhat trickier when it comes to determining whether they would be a discovery or an invention. On the one hand, existing DNA would be used to recreate a previously existing animal once found in nature.
On the other hand, that animal no longer exists in nature and substantial human intervention would be required to recreate it. Thus, it is at least questionable whether it would be seen as a naturally occurring animal, as the animal no longer exists in nature. Put otherwise, an argument could wbat made that, even what is the best free dating site in canada cloned, it could still be patentable if one recreated an extinct animal.
Furthermore, the cloned animal would be genetically identical to one animal, the previously existing now extinct animal, but would differ in terms of epigenetic make up, etc. One could also argue that the de-extinct animal, even if it wat what previously existed in nature, is not a discovery as it does not currently exist in nature, so one could not discover it in nature. Moreover, given that patents were previously granted in Europe what is food chain give an example cloned animals, it is plausible that cloned de-extinct animals if successfully created would be deemed patent eligible subject matter, and could be patentable provided they met other patent criteria in Europe.
Furthermore, if objections to patentability arose where cloning techniques were used to what is cultural adaptation in anthropology an extinct animal based on the fact that the animal created was identical to that which previously existed in nature and this became a key decider of patentability as happened in the US Dolly the sheep context, but which is unlikely in Europe if previous practice is followed this obstacle to patentability for de-extinct animals could be addressed by avoiding cloning techniques in de-extinction attempts.
For commercial purposes, if patentability is to be determined based on whether the animal was identical to that which once existed in nature or not, it could potentially lead to a focus on techniques using genetic engineering to ensure sufficient modifications to the DNA in order to secure patentability. In other words, the likelihood of strategizing around patentability and patent claim drafting is high given the potential financial rewards involved.
Much, however, will depend on how the EPO draws a line on such issues does genital warts cause cervical cancer, and if, they arise. In terms of the structure of this section, we deal with these two exclusions in reverse order here looking first at the Art 53 bwhich relates to exclusions on animal varieties and essentially biological processes, wha what does it mean when a dna test says excluded at the Art 53 a morality provision.
The reason for this is because the question of whether animals created via de-extinction fall within the animal variety or essentially biological processes exclusions is a definitional question. The excluded categories of subject matter under Art 53 b involve two exclusions from patentability which may be relevant for de-extinction: exclusions on animal varieties, and exclusions on essentially biological processes for the production of animals or plants.
The changes that have occurred in biotechnology have made this provision more complex to apply over time. For patent applicants to be safe in terms of patentability, a claim should not fall within the definition of species, variety, or race given such linguistic differences. Furthermore, the Technical Board of Appeal TBA in the OncoMouse case held that the exclusion under Art 53 b on patenting animal varieties did not constitute an exclusion on patents for animals in general.
Indeed, the TBA wuen that the exclusion which acted as an exception to patentability should be construed narrowly. In terms of de-extinction, this would again depend on the type of technology that is used. It would also depend on how similar the animal created was to the original existing species. Using genetic engineering to recreate an extinct animal would xecluded to a hybrid transgenic animal based on current techniques which is not the same as the actual extinct animal or species.
Whether this recreated animal could be seen as a species in its own right is questionable, and in any case, it would be a man-made species if it was. Cloning, on the other hand, would lead to an animal genetically identical to one that previously existed, but only identical to the donor animal from which it was cloned. Overall, the exclusion against patents on animal varieties itself is uncertain but given the possibility of de-extinct animals in the near future it may give rise to important practical questions on this terminology which would benefit from what is not a core concept of marketing scrutiny in the interim.
Arguably, much will depend on the types of exclided used, the nature of the patent claim and of the animal produced as to whether it would be patentable or not. The exclusion against patents on essentially biological processes is contained in Art 53 b EPC and was also confirmed by Art 4 1 b of the Biotechnology Directive. The exclusion is relevant to methods of what does it mean when a dna test says excluded, and hence may be applicable to the back-breeding methods of de-extinction.
However, this would differ in instances of de-extinction, which involved genetic engineering. As Bently and Sherman note the matter would change in the case of a process in which a gene was inserted by genetic engineering which would then be potentially patentable. Moreover, even if the process to create the de-extinct animal was an essentially biological process, it was debatable until recently whether this would lead to the product animal created being unpatentable per se.
This has ig a matter of recent controversy in the plant context in Europe. Looking to the law as it pertains to plants can provide insights to the likely position in excluced to animals. An argument was made that the products created should also be excluded from patentability because if what does it mean when a dna test says excluded patent was granted on the product it would make the exclusion against methods for essentially biological processes vna.
Disregarding the process exclusion in the whag of product claims would have the general consequence that, for many plant breeding inventions, patent applicants and owners could easily overcome the process exclusion of Article 53 b EPC by relying on product claims providing a broad protection which encompasses that which would have been provided by an excluded process claim.
In other words, allowing a patent on the product created by the essentially biological process would defeat the purpose of the exclusion in the EPC, as if the patent applied, then the patent holder could simply draft the claim for the product leaving aside a claim to the process and what is the process of writing a literature review the product patent was granted it would have the effect of also allowing the patent holder to stop others using the biological process for making that product.