News (#09 September 2016)

UBA News

Prospects for improving economic competition protection

On 5 August the Ukrainian Bar Association Committee on Competition Law held a meeting to discuss urgent legislative initiatives. Participants discussed the Draft Act of Ukraine On Amendments to Some Acts of Ukraine (concerning violation cases of legislation on economic competition protection) and the AMCU Explanation Draft for determining fines.

Igor Svechkar, partner of Asters, drew attention to the fact that the Antimonopoly Committee of Ukraine as well as professionals displayed interest in the Draft Act. Among major innovations he singled out the leniency program for participation in cartels. This mechanism has been successfully applied in many countries. According to the speaker, the main problem is reduced to the complexity of the process of proof in cartel cases. The authors of the Draft suggested a reduction of fines from 50% to 70% for speedier resolution of cases.

Within the discussion of the AMCU Explanation Draft for determining fines, Oleksandr Voznyuk, partner of Asters, noted that it is necessary to divide the investigation and decision-making functions in the AMCU. The Draft envisages establishing an independent investigative body unrelated to the collegial body that adopts decisions. The participants considered the suggestion of passing the decision-making function to the courts. Mr. Voznyuk concluded that both options are applied in international practice.

 

Patenting inventions in the field of biotechnology

The UBA Committee on Pharmaceutical Law on 16 August 2016 organized a seminar devoted to discussion of practical aspects of patenting inventions in the field of biotechnology.

During the meeting Mariya Ortynska, director of the IPStyle Patent Law Company, updated the audience with the latest trends in the biotechnology field and about the features of patenting inventions in the field of biotechnology. She started her speech with the pros and cons of patenting. Among the advantages the speaker highlighted: stimulation of inventors or companies to invest in subsequent research, monopoly on the use of patented technology, protection against claims of violation of rights of third persons. On the other hand, Mrs. Ortynska noted such disadvantages as protection only within a specific territory, duration of the procedure, progress braking, material costs and possible difficulties within patent protection.

The participants considered an example of biotechnology patenting in Ukraine, Europe and USA and discussed several cases. One of them was the case of John Moore, who was diagnosed with leukemia, and scientist David Gold, who studied the cancer at UCLA Medical Center, which removed his spleen. After a few days Mr. Gold learned that blood cells are unique and can be used to protect against infections. On 30 January David Gold files an application for a patent on John Moore’s T-lymphocytes. Mr. Moore argued that he continues to own the cells even after their removal, and that he did not consent to their use for commercial purposes. However, the court took the side of the scientist as US federal law allows the patenting of organisms that are the product of human ingenuity but that do not occur among natural organisms. The court ruled that human cell lines are patentable because the adaptation and growth of human cells is a highly complex process, and the probability of success is low.

By way of conclusion, Mrs. Ortynska drew attention to the fact that inventions which are contrary to public policy or morality are not patentable.

 

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