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European Biopharmaceutical Review

The Patent Challenge

 

The pharmaceutical and software industries are exploring new ways to share complex biomedical data and to accelerate the pace of discovery in the area of life sciences. A new discipline, known as Bio-IT, has emerged from this process, reflecting an increasing need to file patents that combine aspects from both the biotechnology and information technology fields. Such patents often fall into a category known as ‘business methods’. Business method patents aim to secure the IP rights associated with a particular method of facilitating business, but the expression ‘business’ may be interpreted very broadly and include scientific fields where inventions are turning up in non-traditional ways. For example, one area of Bio-IT that is evolving particularly quickly is ‘personalised’ medicine. Personalised medicine refers to the concept that managing a patient’s health should be based on the individual patient’s intrinsic genetic information (genotype) so that medical care can be tailored to the patient’s needs. Claims that are suitable to encompass the scope of protection sought in personalised medicine-related inventions have been categorised as being business method claims.

Until recently, business methods were considered patentable in the US, Australia, Japan and Korea, but not in Europe (including the UK) and Canada per se. However, if presented in a certain way, business method patent applications filed in Canada are classified as ‘electrical digital data processing; digital computing or data processing equipment or methods specifically adapted for specific functions’, which allows patentees to obtain a similar protection as that obtained in ‘pro business method’ jurisdictions. A similar situation exists in Europe. According to Article 52 of the European Patent Convention (EPC), a European patent shall be granted for any invention which is susceptible to industrial application, which is new and which involves an inventive step (1). Furthermore, in accordance with Rules 27 and 29 of the EPC, in order to be patentable, an invention must be of a technical character to the extent that it must relate to a technical field, must be concerned with a technical problem and must have technical features in terms of which the matter for which protection is sought can be defined in the patent claim.


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Demian Barbas is a Patent Agent practising at Ogilvy Renault with particular expertise in biotechnology. He received awards for his doctoral research work (BSc and PhD, Biochemistry, Université de Montréal). His research findings have been published in numerous scientific journals and he has presented papers at a number of national and international conferences. Demian is involved in drafting patent applications in the biotechnology, pharmaceutical and Bio-IT fields, in addition to prosecuting them, and provides all types of patent opinions, including patentability, infringement, validity and right-to-manufacture opinions, in addition to technical support in litigation matters, and strategic advice on developing and managing a patent portfolio.

Alexandra Daoud has a background in electrical engineering (BEng, Electrical Engineering, McGill University) and practises in the areas of electronics, software and telecommunications. Her areas of experience include business methods, Bio-IT and medical devices. Alexandra drafts patent applications and prosecutes them directly at the Canadian Intellectual Property Office and the US Patent and Trademark Office. She also prosecutes patent applications via foreign correspondents at the European Patent Office and other patent offices around the world. Alexandra assists startups with the decision-making process for intellectual property management. Alexandra is a Patent Agent and Partner at Ogilvy Renault.

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Demian Barbas
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Alexandra Daoud
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