Legal policy implication in industrial application terminology as second patentability requirement on biotechnological inventions

Abstract

To establish the utility of biotechnology, a hybrid of basic science research and applied science invention, is not an easy task. The conviction becomes twice as hard in the case patent offices or courts traditionally acknowledge that only applied technology inventions are a patentable subject matter. This paper investigates the impacts of employing ‘industrial applicability” and “useful” terminologies as choice terms for second patentability requirement. Countries can choose their terms of second patentability requirement. Malaysia has chosen industrial applicability. The concept, definition and standard of industrial applicability are comparatively higher compared to “useful” jurisdiction. The actual choice of terms is important, and more complicated, than mere preference of terms. The small details can potentially influence the future of an industry, and the rate of local technological progression. In the context of biotechnology, it determines the survival of the local players, as well as the budding local biotechnology industry. Ironically, it is neither the fault of policy makers, nor of law drafters. A part of the fault is attributed to the nature of biotechnology as an invention, and to the lack of technological capabilities of the key players in local biotechnology.