Pharmaceutical, Biological and Chemical Patents

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The topic of pharmaceutical, biological, and chemical patents is a unique aspect of European and German patent law. Structural changes such as polymorphism and enantiomerism can create derivatives of substances found in prior art, raising questions about their novelty and inclusion in the state of the art. Even if a substance is already known, new medical uses can be patented to encourage medical research. However, the treatment of naturally occurring substances poses challenges regarding accessibility and bioethics. Understanding how different identifications of a substance relate to each other and their patent scopes is crucial, particularly due to absolute substance protection, which covers all potential uses and methods. Past ECJ decisions on broccoli and tomato patents, along with issues surrounding embryonic stem cells, underscore the significance of this legal area. Most cases concerning these patents are adjudicated in German courts, where German jurisprudence often influences ECJ decisions. This context is illustrated through relevant case law. Dr. Maximilian Haedicke, a professor of IP law at the University of Freiburg and a judge at the Düsseldorf Regional Court of Appeal, along with Dr. Marco Stief, LL.M., and Dr. Dirk Bühler, patent attorneys and partners at Maiwald Patentanwälte in Munich, contribute their expertise to this discussion.