European Directive 98/44 EC explicitly said that biotech patents can be granted, although certain things including plant or animal varieties or the discovery of human genes were not patentable. However, the specific drafting of a claim is a different matter, and Venter’s patent’s claims were originally very broad.

Venter’s patent application is being examined by the EPO. Objections to the initial application were made by the examiner in April 2009, which the examiner said were “such that there is no possibility of overcoming them by amendment”. A reply was filed in February 2010, reducing the claims from 28 to 20, and having spent a reported $40 million to create the synthetic DNA, there is no doubt that Synthetic Genomics, the company in whose name the patent was filed, will fight hard to get all the patent protection it can get. It will be interesting to see whether any patents they end up with in Europe do protect anything of monetary worth.

Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com