Biotech patent claims from application to patent infringement
While European harmonisation continues apace, national differences continue to affect how best to construct a patent claim, say Magdalena Tagowska and Agnieszka Zebrowska-Kucharzyk.
According to Article 63, point 2 of the Polish Industrial Property Law (IPL), patent claims should be interpreted based on the specification and drawings. This requirement is not unique to the Polish IPL; a similar regulation can be found in European patent legislation.
However, even though the European legislation predates Poland’s IPL, the actual interpretation of claims differs from one country to another. The question of how to construct patent claims in order to obtain the optimal scope of protection remains crucial.
To answer this question, it is necessary to determine what purpose patent claims serve. First of all, patent claims identify the subject matter of the invention. Secondly, the scope of protection conferred by a patent is determined by interpreting the claim. This is not just an academic exercise, but involves consideration of specific situations of potential patent infringement.
In Polish patent infringement cases, claim interpretation is carried out by civil court judges, who have no technical background and little experience in industrial property. Many therefore view these claims as legal rather than technical texts. Such interpretation based solely on legal criteria ought to clearly define the scope of the rights conferred by a granted patent, as well as any third-party obligations.
It should be noted that neither the patent holder nor the granting patent office has legislative competence to determine the way patent claims should be interpreted. However, the patent holder is solely responsible for claim construction, ensuring the broadest scope of protection and defining the claimed technical solution to guarantee legal certainty for establishing potential infringement. This issue is especially important for pharmaceutical and biotechnology patents.
Pharmaceutical and biotech patents
Direct protection for chemical compounds and pharmaceutical products became possible in Poland in 1993, as a result of an amendment to the Patent Act. This was a breakthrough for protecting pharmaceutical inventions in Poland, because before the amendment, companies were only able to protect the method for manufacturing a product, but not the product itself. Subsequent amendments provided even greater protection for pharmaceutical and biotech inventions:
