Discrimination by Redefinition

The judicial approach to patenting biotechnology in the United Kingdom

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Abstract

Biotechnology is a term which evokes extreme reactions in many people. However, irrespective of whether biotechnology is seen as a benefit or a curse, it certainly has the capacity to significantly alter our world, or at the very least to drastically change our social understanding of it. It is because of this capacity that it is so important to the industry to secure monopoly rights over biotechnology. After all, this is a highly innovative and potentially lucrative sphere which demands that vast sums be expended on Research and Development investment: such high-stakes gambling necessitates certainty of legal protection in order to secure the benefits of winning. Therefore, incidence of legal ambivalence towards biotechnology patents may make the industry reticent to invest where financial rewards are precarious. Inevitably this could mean that the industry may relocate to less legislatively restrictive countries, but leaving them free to exploit biotechnology products and processes in the United Kingdom.

The recent decision in Biogen v. Medeva 1 was not only a landmark decision in consequence of being the first consideration by the House of Lords of a biotechnology case, but it was also distinguishable as the most recent example of a restrictive approach which has increasingly been adopted by the United Kingdom judiciary towards biotechnology. It can be argued that this is evidenced by an intrinsic element of hindsight judgment which permeated the entire ratio of the House of Lords in this case, resulting in a prejudicial attitude towards biotechnology patents.

Utilising the case, this article aims to illustrate how the judiciary have taken it upon themselves to discriminate against biotechnology by redefining the legislation, seemingly without consideration of the long-term implications. The result *J.B.L. 576 being that the United Kingdom may lose an industry in which it excels,2 but which it would be unable to exclude entirely without far-reaching legislative reforms.
Original languageEnglish
Pages (from-to)575-585
Number of pages11
JournalJournal of Business Law
Publication statusPublished - 1997
Externally publishedYes

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biotechnology
discrimination
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legal protection
gambling
monopoly
ambivalence
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reward
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legislation
reform

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abstract = "Biotechnology is a term which evokes extreme reactions in many people. However, irrespective of whether biotechnology is seen as a benefit or a curse, it certainly has the capacity to significantly alter our world, or at the very least to drastically change our social understanding of it. It is because of this capacity that it is so important to the industry to secure monopoly rights over biotechnology. After all, this is a highly innovative and potentially lucrative sphere which demands that vast sums be expended on Research and Development investment: such high-stakes gambling necessitates certainty of legal protection in order to secure the benefits of winning. Therefore, incidence of legal ambivalence towards biotechnology patents may make the industry reticent to invest where financial rewards are precarious. Inevitably this could mean that the industry may relocate to less legislatively restrictive countries, but leaving them free to exploit biotechnology products and processes in the United Kingdom.The recent decision in Biogen v. Medeva 1 was not only a landmark decision in consequence of being the first consideration by the House of Lords of a biotechnology case, but it was also distinguishable as the most recent example of a restrictive approach which has increasingly been adopted by the United Kingdom judiciary towards biotechnology. It can be argued that this is evidenced by an intrinsic element of hindsight judgment which permeated the entire ratio of the House of Lords in this case, resulting in a prejudicial attitude towards biotechnology patents.Utilising the case, this article aims to illustrate how the judiciary have taken it upon themselves to discriminate against biotechnology by redefining the legislation, seemingly without consideration of the long-term implications. The result *J.B.L. 576 being that the United Kingdom may lose an industry in which it excels,2 but which it would be unable to exclude entirely without far-reaching legislative reforms.",
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