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

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.