EPLAW Patent Blog

BE - Does Belgian patent law need a breeders exemption?

Philippe de Jong, one of our Belgian editors has written an article on whether or not Belgian patent law needs a breeders exemption.

"In Belgium, the situation is different. Contrary to the countries referred to above, Belgium has a rather broad research exemption. According to the Belgian Patent Law of 1984 (Article 28(1)(b)), “the rights conferred by a patent do not extend to acts that are committed on and/or with the subject matter of the patented invention for scientific purposes”. The scope of this provision is very similar to that of the specific breeder’s exemptions introduced in the aforementioned countries. First of all, although the terms “for scientific purposes” are not defined in the law, there seems to be a broad consensus that they should not be interpreted too narrowly (in the sense of “for purely scientific purposes”, i.e. with a view to developing knowledge or the testing of an hypothesis), but rather broadly (in the sense of “for combined scientific and commercial purposes”, i.e. with a view to developing new products). It is not because the result of an experiment is subsequently commercialised, that the experiment would suddenly no longer be “scientific”. Secondly, the terms “on and/or with” indicate that it is allowed to use the patented invention as a tool to develop new products, without requiring a licence from the patentee. In terms of plant breeding, this provision thus allows a breeder to use patented material for the purpose of breeding new varieties."

Read the full text of the article here.

 

NO - Torbjørn Kvassheim v. research foundation Stiftelsen SINTEF

Torbjørn Kvassheim v. research foundation Stiftelsen SINTEF, contributory infringement/research exception, Norwegian Supreme Court, Oslo, 22 December 2009, Docket. No. HR-2009-2402-A, with thanks to Amund Brede Svendsen, Grette

The Supreme Court majority emphasized that the experimental exception and the right to strive for new knowledge does not mean that a research institution can exploit such knowledge commercially by selling the product based on the new knowledge without incurring liability for any patent infringements. Delivering means for the use of the inventions may constitute a contributory patent infringement, even if the means include or are based on new knowledge acquired by research activities that do not infringe the patent.