1 May 2011EuropeCaroline Pallard and Bart Swinkels

The role of the function of DNA sequence before and after grant

Before grant

Industrial application is one of the requirements of a European patent (EP). Subsequently, the EC Biotech Directive 98/44 provided more explanation of the concept of industrial application of DNA sequences: the industrial application of a DNA sequence must be disclosed in the application. A DNA sequence without indication of a function is not a patentable invention. If a protein is to be produced, its function should be defined in the application.

Several EP case law decisions issued on industrial application of DNA sequences-related inventions shed new light on the concept of ‘function’ when applied to a protein/corresponding DNA sequence.


The European Patent Office Board of Appeal held that the requirement of industrial application was not met. It held that the only practicable use suggested is to use the BDP1 phosphatase to find out more about its natural function. This kind of activity could not be considered as industrial application, but rather research.

Therefore, even if the structure and function of a protein is disclosed, the requirement of industrial application is not necessarily met if:

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