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The Exclusion of Animal Inventions from Patent Protection: Issues of Interpretation and Application for a Developing Country - Malaysia

Warnoh, Syahliza (2012) The Exclusion of Animal Inventions from Patent Protection: Issues of Interpretation and Application for a Developing Country - Malaysia. PhD thesis, University of Sheffield.

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Abstract

Article 27.3(b) of the Agreement on Trade-related Aspects of Intellectual Property Rights 1994 allows its Signatories to exclude ‘animals’ from patent protection within national patent laws. While the exclusion of ‘animal varieties’ is contained in s13(1)(b) of the Malaysian Patents Act 1983, the meaning of the term which represents the exclusion, and, therefore, the excluded subject matter, is unclear. A question arises as to how the country should interpret the exclusionary provision in the context of the flexibility under Article 27.3(b). This thesis answers the question in the light of the growing demand for animal protein-based food from Malaysians, which proves difficult to meet from within existing production methods. Therefore, animal biotechnology has been identified by the Malaysian Government as a pertinent tool to reduce costly imports of livestock products. Underpinned by doctrinal approach, the thesis assesses two models of interpretation within the international patent law framework: the permissive and restrictive approaches. The former arises from narrowly construing the term ‘animal varieties’ under Article 53(b) of the European Patent Convention which results in permissively enabling patenting for animal inventions which would be excluded under a broad legislative construction arising from the interpretation of the term ‘invention’ under s2 of the Canadian Patent Act 1985. The implications of both approaches on the livestock industry are assessed so as to identify a suitable model which would promote the progression of the Malaysian animal biotechnology sector, and ultimately secure the supply of the livestock products for the population. Underpinned by the argument that patent protection is a pertinent factor in encouraging innovation and investment, this thesis argues that the permissive approach is the most practical approach for Malaysia to adopt for interpreting the exclusion of animal inventions under s13(1)(b). This thesis provides a test case for other developing countries which also exclude animal inventions within their national patent laws, and have a similar economic template to Malaysia, enabling them to appreciate how the exclusion can be construed in pursuing their economic priorities.

Item Type: Thesis (PhD)
Keywords: patent law; patent protection; biotechnological inventions; animal inventions; developing countries; Malaysia; Article 53(b) of the European Patent Convention; section 2 of the Canadian Patent Act; section 13(1)(b)of the Malaysian Patent Act; interpretation of statutes; comparative methodological approach; doctrinal approach; Article 27.3(b) of the TRIPs Agreement; Convention of Biological Diversity; technology transfer; disclosure requirements; Doha Development Agenda; animal biotechnology industry; livestock industry; husbanding industry; food security; animal biotechnology food; interpretation of an exclusionary provision; unpatentable subject matter; patentable subject matter; patent qualification; sustainable development; animal varieties
Academic Units: The University of Sheffield > Faculty of Social Sciences (Sheffield)
Depositing User: Mrs Syahliza Warnoh
Date Deposited: 03 Dec 2012 15:40
Last Modified: 08 Aug 2013 08:50
URI: http://etheses.whiterose.ac.uk/id/eprint/2891

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