McMahon, Aisling and Doyle, David (2020) Patentability and de-extinct animals in Europe: the patented woolly mammoth? Journal of Law and the Biosciences, 7 (1). lsaa017. ISSN 2053-9711

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Abstract

De-extinction is a hot topic within conservation science but the potential patentability of de-extinct animals in Europe has hitherto been unexplored. This article addresses this lacuna, examining the legal, commercial, and ethical implications of patenting de-extinct animals under European patent law. The article is organized into four parts. Part I explores the reasons why patents are relevant and may be applied for in this context. Part II provides an overview of the scientific techniques currently being used in de-extinction projects, setting the foundation for the analysis of patentability which follows. Part III then critically assesses whether recreated animals would qualify as patent eligible subject matter under European patent law. It also investigates the extent to which European patent exclusions such as those on animal varieties, essentially biological processes, and the morality provisions might apply and whether recreated animals would meet the novelty requirement for patentability. Part IV concludes by highlighting the possible ramifications of patenting such animals, elucidating the chasm between the cultural and symbolic significance held by such animals, and their lack of differential treatment in the patent law sphere. It argues that de-extinction reignites questions around the scope of patents, and the role of ethical considerations within patent decision-making which warrant urgent reconsideration.

Item Type:	Article
Additional Information:	© The Author(s) 2020. Published by Oxford University Press on behalf of Duke University School of Law, Harvard Law School, Oxford University Press, and Stanford Law School. This is an Open Access article distributed under the terms of the Creative Commons Attribution NonCommercial-NoDerivs licence (http://creativecommons. org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. Cite as: Aisling McMahon, David M Doyle, Patentability and de-extinct animals in Europe: the patented woolly mammoth?, Journal of Law and the Biosciences, Volume 7, Issue 1, January-June 2020, lsaa017, https://doi.org/10.1093/jlb/lsaa017
Keywords:	de-extinction; ethics; morality exclusions; OncoMouse; patents; transgenic animals;
Academic Unit:	Faculty of Social Sciences > Law
Item ID:	15646
Identification Number:	https://doi.org/10.1093/jlb/lsaa017
Depositing User:	David Doyle
Date Deposited:	08 Mar 2022 16:58
Journal or Publication Title:	Journal of Law and the Biosciences
Publisher:	Oxford University Press
Refereed:	Yes
URI:	Publisher
Use Licence:	This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here

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