Biotechnology and law: biotechnology patents. Special considerations on the inventions with human material.

The EC and the US differ considerably in their ruling on the patentability of biotechnological inventions apart from some exceptions. The most extreme positions in either direction with regard to the individual biotechnological inventions mark the margins of the scope which the WTO members may use for the ratification of Art. 27 TRIPS. Rulings which are not in accordance with Art. 27 TRIPS remain without consideration. In the most important point both WTO member agree: Human beings are not patentable. Other regulations could be considered, but one may assume that no member of the WTO intends to make use thereof. Thus the scope involving this option is only a theoretical one. The situation is different when it comes to the components of the human body. These may, provided they are produced artificially or are separated from the human body, be patented. According to the regulations in the US, this applies to all components with the exception of totipotent stem cells. They may be exempted from patenting entirely or their patenting is linked to far reaching conditions. As an example should be named here the regulation of the EPA for patenting gene sequences. The scope of this area is, thus, very great and allows for many options of applying the regulations of Art. 27 TRIPS. With regard to patenting procedures for cloning human beings, the scope is unlimited. These procedures may either be completely excluded from patenting as in the EC or may be considered patentable independent of their purpose as in the US. The same applies to procedures for gathering human stem cells in the US. Exempting procedures with regard to human genes or DNA sequences are, however, only possible in special cases, as for example in the EC with regard to procedures for altering the genetic identity of the germline of human beings. However, the interpretation of general patentability preconditions allows to influence the patenting of such procedures. This means, though, that the scope for interpretation is only a small one in this area.     

海上保险立法的国际协调:基础、现状和障碍

探讨了法律协调的含义和动因,分析了海上保险立法国际协调运动的客观基础,并对海上保险立法国际协调运动的现状和当前存在的障碍进行了论述。     

Constitutional foundations of commercial and investment arbitration in Nigerian law and practice

Ten years ago Sir Anthony Mason, a former Chief Justice of Australia, warned that ‘a failure to strike the right balance between judicial independence and judicial accountability will result in either an unacceptable weakening of judicial independence or inadequate accountability’. ¹ 1 Judicial Commission of New South Wales (1997) Fragile Bastion – Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales), Chapt 1, p. 2.

This article examines some of the evolving aspects of judicial independence and judicial accountability within and outside the Commonwealth Caribbean and highlights some of the practical problems that occur in our region or are likely to arise. Decisions of courts and emerging practices in other parts of the Commonwealth provide excellent guidance and lessons for us in the Caribbean.

Judicial independence and accountability are not esoteric matters. They are principles that, admittedly, may resonate particularly with judicial officers because they tend to affect judicial officers in practical ways. But they are principles that are fundamental to good governance in democratic societies. Indeed, Commonwealth Heads of Government acknowledged the importance of these two principles when, at their meeting in Abuja, Nigeria, in 2003, they adopted the Latimer House Guidelines ² 2 The Latimer House Guidelines for the Commonwealth, 19 June 1998. as Commonwealth Principles. Such importance and respect are now accorded judicial independence that the UK Parliament actually enshrined the principle in the text of the Constitutional Reform Act 2005: ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary… must uphold the continued independence of the judiciary.’ ³ 3 Section 3(1).

Although this article will discuss judicial independence and accountability separately, it will be argued that the two concepts are not inconsistent and must coexist.     

Patent first, ask questions later: morality and biotechnology in patent law

This Article explores the U.S. "patent first, ask questions later" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on "anything under the sun made by man," and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created "moral utility" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not "useful." The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the "patent first" approach, and considers the benefits and disadvantages of the "ask questions first, patents later" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.     

Transnational law as a framework for law clinics

Jindal Global Law Review - As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational...     

Justice foundations for the Comprehensive Law Movement

Authors examining the developing dispute resolution alternatives to the adversarial system have identified nine converging "vectors" or alternatives in what has been termed the Comprehensive Law Movement. These authors have sought to understand how the developing vectors can remain separate and vibrant movements while sharing common ground. Some analyze these developments as being within law and legal practice, others see them as alternative approaches to law, and still others take a combined approach. It will be impossible to understand how these vectors have meaningful differences from law and legal practice if the search is limited to looking within law and legal practice. It will be impossible to understand how these vectors have meaningful commonalities with law and legal practice if the search is limited to looking external to law and legal practice. Instead of comparing the vectors with the adversarial system, higher order criteria are required. What is needed is a comprehensive and internally consistent super-system of norms; one that can be used to evaluate the adversarial system and the evolving vectors on an equal footing. An Aristotelian natural law virtue theory of justice can: (a) provide a functional guiding definition of justice; (b) serve as a comprehensive and internally consistent super-system of norms; and (c) provide the theoretical and evaluative foundation required to clarify the relationships among the adversarial system and the developing vectors. Finally, it will become clear why the Comprehensive Law Movement might be more appropriately conceptualized as the Comprehensive Justice Movement.     

Correction to: Transnational law as a framework for law clinics

Jindal Global Law Review - A correction to this paper has been published: https://doi.org/10.1007/s41020-021-00137-6