The EU allows gene patenting
Josh Saul, 2024 - J.D. Candidate, 2025, Fordham University School of Law; Ph.D., 2021, Massachusetts Institute of Technology; B.A., 2014, University of California, Berkeley. “GENE PATENTS: STRIKING THE RIGHT BALANCE BETWEEN INCENTIVE AND INNOVATION” FORDHAM LAW REVIEW, Vol. 92: 2765, May, https://fordhamlawreview.org/wp-content/uploads/2024/05/Vol.-92_29_Saul-2765-2804.pdf //DH
Unlike the United States, some other countries continue to permit the patenting of human genes. The EU, for example, explicitly allows for the patenting of genes.
In the EU, patents are processed by the European Patent Office (EPO) in compliance with the European Patent Convention (EPC).95 The EPC dictates that “any invention” may be patented,96 but it restricts this broad grant with specific limitations—for example, by indicating that “discoveries, scientific theories and mathematical methods” do not qualify as inventions.97 However, directives passed by the EU create carveouts to these restrictions. A 1998 directive of the European Parliament, for example, clarifies that DNA sequences are to be considered inventions—and not unpatentable discoveries—so long as the claimed sequence has an industrial application, such as use in the diagnosis of disease.98 Thus, in the EU, genes qualify as valid patentable subject matter through a narrowly tailored exception to a more general bar on patenting abstract scientific principles.99
With the above backdrop of what gene patents are and how they fit into the broader field of patent law, this part next turns to the legal history of gene patents in the United States that led courts to initially permit and subsequently invalidate the patenting of genes.