The Intricacies of Partly New Inventions: Should We Grant Patentability?

Authors: Anatoli Tsakalidou Published date: 15-07-2015 Status: Published

This article addresses the issue of partly new inventions and the possibility of granting them patentability. The route of the analysis starts with the identification of the sectors in which this issue frequently arises. It consequently continues with finding and locating all those common characteristics of the circumstances under which the ‘phenomenon’-in-question arises. The interesting conclusion of this analysis is that the phenomenon of partially new inventions being granted patentability occurs mainly within the pharmaceutical (and chemicals) sector. This realization leads to even more substantial concerns, especially from a competition law perspective. That is because pharmaceutical (and chemicals) companies apply for – and get granted- patentability of partly new inventions to a wide extent. One of the questions at this point is whether this is causing a restriction to competition by threatening the delicate balances of the specific market. This question is answered through references not only to the law itself, including leading case-law from both the EU and the UK, but also to policy concerns and market-related considerations. Finally, the aforementioned findings are used in order to address the question of whether patentability should be granted to partly new inventions, whilst following a further analysis and assessment of relevant competition -and other- policy issues. Keywords: patents, European Union, EPC 1973, EPC 2000, pharmaceuticals, competition law.

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