The Expert Report "Patent issues related to influenza viruses and their genes"

“Are patents granted on genetic material?

Genetic materials per se are not the direct subject of patent protection. The Convention on Biological Diversity defines ‘genetic resources’ as ‘genetic material of actual or potential value’ , and in turn defines ‘genetic material,’ as ‘any material of plant, animal, microbial or other origin containing functional units of heredity.’ Genetic resources are therefore essentially material, and are not intangible subject matter – the subject matter of patent protection is an ‘invention’ rather than a physical thing. One cannot obtain or assert patent rights over genetic material as such. As an analogy, an author may hold copyright over the contents of book, but that does not give the author ownership over the book as such, which may be separately owned, bought and sold by others as a piece of physical property.

Accordingly, patents are granted over inventions as such, and they are not property rights over physical material that may embody an invention. Nonetheless, many patented inventions do include genetic material within their scope. An isolated gene may provide the mechanism for producing synthetic versions of therapeutic proteins.”[setkbn0209] [yang disusun oleh Life Sciences Program, WIPO, 2007, atas permintaan the World Health Organization kepada the World Intellectual Property Organization, sesuai dengan WHA Resolution 60.28.]