1. Understanding Patents
2. The Role of Patents in Biotechnology
3. International Treaties

Intellectual property biotechnology, including a strong patent system, is a cornerstone of this industry that develops medications, sources of alternative energy, crops that can sustain pests and drought, and other sustainable innovations. Biotechnology is the use of science to produce products, services, and knowledge that can improve the health of the earth and its living organisms.

The three commonly accepted sectors of biotechnology include:

  • Healthcare (red) biotechnology, which seeks to develop new drugs and treatments that improve patient outcomes and anticipate future medical needs.
  • Agriculture (green) biotechnology, which bolsters plants by improving their disease residence, herbicide tolerance, ability to withstand harsh environmental conditions, and ability to yield a greater harvest with fewer resources.
  • Industrial (white) biotechnology, sometimes called the third wave of this industry, uses biotechnology tools to improve production and manufacturing processes.

Understanding Patents

Patent protection grants an inventor exclusive rights over his or her innovation for a specific time period. The exact duration of a patent, the level of protection it provides, and the requirements to get a patent vary depending on industry and other factors. In general, an invention must meet the requirements of being new, innovative and not obvious, usable in industry, and disclosed to the public in order to receive a patent.

In most cases, a patent allows a company the legal right to use, possess, sell, or otherwise transfer an invention and keeps others from enjoying these rights. Only a few companies provide specific patent protection for biotechnology, often because of practical, religious, ethical, or social concerns. 

The Role of Patents in Biotechnology

The U.S. is a world leader in biotechnology, creating lucrative jobs, economic growth, and an edge in the global market. Patents protect these advantages, which allow inventors in this industry to recoup expensive development costs for new innovations. Without intellectual property (IP) protections such as patents, the industry would be unable to provide these community-building benefits and life-saving innovations.

The biotech industry has supported key developments in the agrochemical, pharma, environmental, and energy sectors, particularly in the areas of molecular biology and medicine. As this industry has grown exponentially in recent years, patent and grant applications in biotechnology have also increased--by 15 percent every year in the U.S. from 1990 to 2000.

Patents are important in this industry because biotechnology is so research-intensive. Biotech companies spend 40 to 50 percent of revenues on research and development, compared to just 5 percent in the chemical industry and 13 percent in the pharma industry. This substantial investment must be protected with patents.

Unlike many other industries, basic and applied research are closely linked in biotechnology. In most countries, the industry consists of new SMEs, many of which have not yet brought a product to market. Instead, these companies establish themselves based on their IP rights or patents developed by coordinating with public universities and research organizations. In biotech, IP is the final product, since the patents are often sold to larger companies who can afford to produce and market the patented invention.

A biotech innovation is eligible for patent protection if it fulfills three basic requirements: non-obviousness, novelty, and industrial utility or application. The most common patent categories in this field include those that involve genetic diagnostic tools, DNA coding, and genes that affect biological pathways. 

Because patents are so central to this industry's profitability, biotech companies must have a solid IP protection strategy in place to minimize risk and attract investors.

International Treaties

Several global IP treaties are critical to the biotech industry.

  • The Paris Convention for the Protection of IP signed by 11 countries in 1883, now includes most countries that have intellectual property laws. This treaty indicates that anyone from a party country who applies for a patent or other IP protection has the same right to this protection as another party country. Patents are broadly defined under this treaty and applications made in one country have priority in all other party countries for a 12-month period.
  • The Deposit Treaty covers patent applications that include deposits of sample microorganisms.
  • The Patent Cooperation Treaty allows those from any member country to file one patent application simultaneously in all member countries.

If you need help with patenting a biotechnology innovation, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.