O patentowaniu ludzkich genów. Od Helacyton gartleri do BRCA1 i BRCA2
About patenting human genes. From Helacyton gartleri to BRCA1 i BRCA2

Summary/Abstract: The paper describes the patenting of biotechnological inventions in the face of the current extraordinary controversies in the industries such as pharmaceuticals, biotechnology, information technology, business organization. The main issue associated with the mentioned in the article controversies over inventions, in particular biotechnology, is the exclusion on patenting of discoveries. The essay presents the nature and purpose of the exclusion. In this context, there are explained definitions of discovery and invention, which are not regulated in the substantive law, but are presented by the case law and the doctrine. Particularly a method of assessing the patentability of human genes was discussed (the examination of an industrial applicability by identifying function of genes and the premises of the technique nature of the invention and the premises of the non-obviousness, examined in particular by the fact of isolating genes). It also presents the problem of exclusion from patentability of the human genome. Additionally, the issue of obtaining the prior consent of the person from whom the cells are taken for commercial use, and in particular patenting was described. It was presented to underline an importance of assessing if the invention is contrary to morality or public order. The author of the text introduced differences between the practice of examination of the patentability of genes applied by the European Patent Office and the Supreme Court of the United States. Moreover, a number of currently irregularities in connection with the imprecise examination of patentability of test genes, including human genes, were presented.

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