<p>Patent law has during time evolved from industrial inventions to also include intellectual inventions. Patentability has as well changed with time. For technology to be patentable it must be considered to be a technical solution to a problem, and today genetic inventions are considered to be such a technical solution. From the beginning plants and animals were not considered as inventions; however, technology progress urged modifications of existing legislation to meet development progress within technology. European as well as international harmonization have been carried out in this field to ensure uniformity.</p><p>The exclusion from patentability for plant and animal varieties can be found in several sources of law; this study focuses on the exclusions in Article 4 of Directive 98/44/EC on the legal protection of biotechnological inventions, as well as in Article 53b of the European Patent Convention. After two specific cases from the European Patent Office the scope of the exclusion from patentability for plant and animal varieties was questioned. The two cases ONCO-mouse and Plant Genetic Systems had different outcomes, patent was granted in one case and not in the other; and that raised confusion as to the definition of plant and animal varieties, as both cases concerned genetic modification.</p><p>Although there is no clear definition of plant and animal varieties, case law provides guidance to a certain extent, the reasoning in the case law also gives guidance as to where the judiciary is heading in its interpretation. There is more legislation concerning plant varieties, and the definition of this term might be considered to be clearer. The general opinion seems to be that what is said about plant varieties should be applied mutatis mutandis to animal varieties, and vice versa, however this may be questionable in some cases. The lack of a clear definition of the terms plant and animal varieties might result in a lack of legal certainty in this field, as demonstrated by the questioning of the two contradicting cases mentioned above.</p><p>Rapid developments in the field of biotechnology imply that the patentability of plants and animals will be assessed on other grounds in the future. As biotechnology is an expanding area, the acceptance of new controversial inventions may occur on a more regular basis. Time will tell if this is the case.</p>

Patent law has during time evolved from industrial inventions to also include intellectual inventions. Patentability has as well changed with time. For technology to be patentable it must be considered to be a technical solution to a problem, and today genetic inventions are considered to be such a technical solution. From the beginning plants and animals were not considered as inventions; however, technology progress urged modifications of existing legislation to meet development progress within technology. European as well as international harmonization have been carried out in this field to ensure uniformity. The exclusion from patentability for plant and animal varieties can be found in several sources of law; this study focuses on the exclusions in Article 4 of Directive 98/44/EC on the legal protection of biotechnological inventions, as well as in Article 53b of the European Patent Convention. After two specific cases from the European Patent Office the scope of the exclusion from patentability for plant and animal varieties was questioned. The two cases ONCO-mouse and Plant Genetic Systems had different outcomes, patent was granted in one case and not in the other; and that raised confusion as to the definition of plant and animal varieties, as both cases concerned genetic modification. Although there is no clear definition of plant and animal varieties, case law provides guidance to a certain extent, the reasoning in the case law also gives guidance as to where the judiciary is heading in its interpretation. There is more legislation concerning plant varieties, and the definition of this term might be considered to be clearer. The general opinion seems to be that what is said about plant varieties should be applied mutatis mutandis to animal varieties, and vice versa, however this may be questionable in some cases. The lack of a clear definition of the terms plant and animal varieties might result in a lack of legal certainty in this field, as demonstrated by the questioning of the two contradicting cases mentioned above. Rapid developments in the field of biotechnology imply that the patentability of plants and animals will be assessed on other grounds in the future. As biotechnology is an expanding area, the acceptance of new controversial inventions may occur on a more regular basis. Time will tell if this is the case.

Cette étude sociologique propose une analyse comparée de l’institution française (l’OFPRA) et allemande (le BAMF) chargées de l’instruction des demandes d’asile. L’enquête de terrain réalisée en leur sein a permis une description détaillée des pratiques administratives encadrant le processus d’élaboration des décisions sur les dossiers de demande. Des différences notables s’observent tant au niveau du profil socioprofessionnel des agents instructeurs de chacune des deux institutions nationales qu’à propos des attitudes générales de ces derniers face à la problématique de l’asile. Au-delà de ces différences, une remise en doute et une profonde méfiance face aux déclarations des demandeurs d’asile constituent une constante dans leur pratique professionnelle. L’importance que l’institution attribue à la question de la crédibilité des récits d’asile confère un pouvoir discrétionnaire significatif aux agents administratifs et laisse une place importante à l’intime conviction dans le processus décisionnel. La délicate communication avec les demandeurs et l’application parfois malaisée des textes de loi nationaux et internationaux aux problématiques présentées par ces derniers imprègnent l’instruction des dossiers d’une grande incertitude. L’analyse de la relation administrative entre demandeurs et décideurs permet finalement d’identifier la méfiance réciproque et le décalage entre les catégories juridiques et la réalité des migrations contemporaines comme deux problèmes centraux des dispositifs d’asile français et allemand. / This sociological study is a comparative analysis of the French (OFPRA) and German (BAMF) institutions in charge of processing asylum claims. Fieldwork on their premises enabled a detailed description of the administrative practices that frame the application-based decision-making process. Notable differences were observed between the two national institutions regarding the socio-professional profiles of the instructing agents but also the latter’s general attitudes towards the asylum issue. Beyond these differences, a constant in their professional practice can be found in an attitude of doubt and deep mistrust towards asylum seekers. In the evaluation of the applicant’s asylum accounts, institutions give great importance to the issue of credibility. This bestows a considerable discretionary power to the administrative agents. It also introduces a strong element of subjectivity in the decision-making process. Because of the delicate nature of communication with the applicants and the sometimes difficult application of national and international legislation to each particular case, the administrative decision-making process is imbued with great uncertainty. The analysis of the administrative relationship between applicants and decision-makers enables to identify the mutual mistrust and the gap between legal categories and the reality of contemporary migration as two central problems in the French and German asylum systems.