Regulatory Coherence—A European Challenge

Volume: 3

Pages: 235-258

DOI: 10.1007/978-3-319-04903-8_12

Abstract:

This paper concerns the ideal of regulatory coherence, with particular reference to Europeanpatent law, and with the spotlight on the controversial decision of the CJEU in Oliver Brüstle v Greenpeace (interpreting Directive 98/44/EC on the Legal Protection of Biotechnological Inventions). The Brüstle decision invites the objection that it is incoherent, both formally (because the Court rules that the products of a permitted and innovative research activity are excluded from patentability) and substantively (because its strong protection of human embryos is not supported by the jurisprudence of the European Court of Human Rights). The thrust of the paper is that, while these particular objections can be answered, it is arguable that the decision of the CJEU is not the appropriate target for the critics; rather, if there is a serious incoherence in European patent law, it is in the 1998 Directive itself.

Source: Scopus