patentability must be interpreted narrowly. This principle should be consistently
applied to all types of technology, and it should not unjustifiably be ignored in the
case of human biotechnology, especially taking into account Article 28 paragraph
1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(hereinafter: TRIPS), which concerns the prohibition to discriminate as to the
field of technology when granting patent rights. Besides, as it was seen in one of
the previous sections, many EU member states allow research on human embryos
with the objective of isolating or further research on human embryonic stem cells.
These states obviously deem it moral and legal to use human embryos in the stage
of research and for the advancement of science, which should not be equaled to the
situation in which those embryos would be used in industrial or commercial
purposes,i.e., in which they would be repeatedly destroyed with the obvious goal
of generating profits.
Unlike the wide interpretation, neither the narrow nor the intermediate interpre-
tation brings Article 6 paragraph 2 item (c) of the Directive in conflict with
paragraph 1 of the same Article because both interpretations take into account
only actions occurring in the stage of the commercial exploitation of an invention,
not interfering with the earlier stages of research and the development of the
technology like the wide interpretation does. The narrow interpretation, however,
seems to be too narrow because Article 6 of the Directive speaks about inventions
and not about patent claims. This is important because a particular invention is
determined not only by what is included in the patent claims but also by the
technical teaching that follows from the entire patent application. Therefore,
when judging if a certain invention is excluded from patentability under Article
6 paragraph 2 item (c) of the Directive, the technical teaching necessary for a person
skilled in the art to work the invention also must be taken into account. Considering
the aforementioned, the intermediate interpretation seems to be the most complete
out of the three possibilities. Unlike the narrow interpretation, it takes into account
the text and the meaning of the provision of the Directive, and unlike the wide
interpretation, it is consistent with the generalordre publicand morality clause,
while it at the same time satisfies the purpose of introducing the prohibition to
patent inventions involving uses of human embryos for industrial or commercial
purposes. In other words, it prevents the commodification of embryos and it
safeguards human dignity, but it does not discourage the research of human
embryonic stem cells and their multifold potential in medicine, which was certainly
not the goal of the Directive on Patents in Biotechnology.
4.2 Decisions of the CJEU Regarding the Interpretation
of Article 6 of the Directive
It is obvious from the discussion in the previous sections that the provisions of the
Directive on Patents in Biotechnology that affect the patentability of inventions
70 J. Mutabžija