Background

Both the existence and exploitation of human gene patents have gained wide attention. Although the controversy about the eligibility of patents in the field of human genetics remains, this primarily ethical debate has largely been ‘outlawed’ by the political international consensus to allow the registration of such patents as long as the general patentability requirements are fulfilled. Nevertheless, the voice of opponents of human gene patents is still regularly heard at various platforms and echoed in legislative proposals at both sides of the Atlantic. It remains to be seen to what extent this will actually lead to a reopening of the patentability debate and ultimately amendments in the patent legislation and granting policies. Some people would probably even argue that the policy of the patent offices actually already became more restrictive with regard to gene patents. In this paper I do not explicitly deal with the desirability of gene patents, rigorous application of patentability standards and patent scope, although I do recognize that these issues are intrinsically connected with the subject of this paper. However, as these topics are not the principal focus of this book, we will start from the status quo where gene patents have been and are granted globally and we will focus on the problems that granted patents might create with respect to their exploitation.

Moreover, clearinghouses are part of a spectrum of solutions which may remedy the problems described below. Research exemptions, compulsory licences and clearinghouses are just three of them.