Biology does not respect legal categories

Leaving aside the issue of what constitutes an 'essentially biological process for the production of animals or plants', the categorization problem arises when the definition of a 'variety' is considered. Our Act provides no guidance here, but in the corresponding EPC Rule 26* a "plant variety" means "any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

a) defined by the expression of the characteristics that results from a given genotype or combination of genotypes,

b) distinguished from any other plant grouping by the expression of at least one of the said characteristics, and 

c) considered as a unit with regard to its suitability for being propagated unchanged."

Extending the concept a bit to encompass animals as well, this means that an argument can be made that a grouping within a higher taxonomical rank (genus or family) would fall outside this schema. So a "rat" of the genus Rattus may be patentable, where Rattus rattus is not. Which in practice is not much of a difference, given that the thing actually being patented is usually a specific DNA construct rather than the concept of 'rats'. But it gets significantly more existential when you take into account the fact that we don't actually have a settled definition of what a species even is. There are about half a dozen ways to define what a species is, with the biological species concept being the current 'standard' view, but nature loves to throw edge cases at our categorization systems and even seemingly logical concepts like 'species are defined where two individuals cannot breed with each other and produce viable offspring' break down in the face of things like large morphological variation within a species (think about whether a Great Dane/Chihuahua mix might ever occur 'in the wild', despite the fact that both breeds are certainly of the same species), or where strong mate preferences (often seen in birds) mean that genetically-compatible individuals will nonetheless cluster into distinct breeding populations that act for all intents and purposes like separate species. And then we come back to plants, where the ability to cross-pollinate and hybridise leads to things like intergeneric hybrids (hybrid organisms from different genera) that essentially make a mockery of most of our species concepts.

The third categorization issue that I'd like to point to as an example is one that arises when biology bumps into the vagaries of human activity. For example, in the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA), which deals with conservation, protection of indigenous species, management of invasive organisms and bioprospecting in South Africa, an "indigenous species" means "a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity". To the legal mind, this immediately raises questions about the terms 'historically', 'free state in nature' and 'human activity', as these terms are not defined in the Act. My view, which is very much open to challenge, is that 'historically' can be read with the repeated references to the Republic as meaning the Republic of South Africa. But the Republic was only proclaimed in 1961. So, for instance, the Black Wattle (introduced into South Africa in the late 1800s) might otherwise qualify as an indigenous species by virtue of its introduction predating the proclamation of the Republic, were it not explicitly listed as an invasive species**. More compellingly: Cannabis, which was introduced into the region which now comprises South Africa sometime in antiquity (sources tentatively peg this as sometime between the 1500s and 1700s) by means unknown, and which is capable of living in a free state in nature if given the chance, may also be considered an indigenous species in terms of this Act. 

The end result of biology's lack of respect for our systems of categorization, both scientific and legal, is to frequently create conundrums for the legal worker (and, inevitably, their client). Sometimes these conundrums are effectively resolved by applying good, generalizable legal rules to specific cases. Sometimes they are ameliorated by large bodies of precedent that provide guidance applicable to specific circumstances. Often, however, the legal worker is left to form their own interpretation on a case-by-case basis, using their own legal judgement and scientific knowledge as best they can. Which, to my mind, suggests a role for the cross-qualified scientist-lawyer in cases such as these, as such people are best able to tackle the problem on both fronts. Although, of course, my own background and qualifications no doubt bias me towards this view.

* The wording of the South African Patents Act is essentially identical to the wording used in the European Patent Convention, which in turn uses a number of Rules to flesh out the provisions of the Convention. These Rules, in turn, are then bundled up into the EPC's Guidelines for Examination in the EPO, which is the practical document that EPO Patent Examiners and Applicants use a first port of call when interpreting the Convention.

** The NEMBA both defines an invasive species and makes provision for a published list of invasives. The Black Wattle is both listed and very compellingly falls within the definition of 'invasive species' provided in the Act.