01.17.18

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EPO Board of Appeal Has an Opportunity to Stop Controversial Patents on Life

Posted in Europe, Patents at 5:02 am by Dr. Roy Schestowitz

“Since the birth of the Republic, the U.S. government has been in the business of handing out “exclusive rights” (a.k.a., monopolies) in order to “promote progress” or enable new markets of communication. Patents and copyrights accomplish the first goal; giving away slices of the airwaves serves the second. No one doubts that these monopolies are sometimes necessary to stimulate innovation. Hollywood could not survive without a copyright system; privately funded drug development won’t happen without patents. But if history has taught us anything, it is that special interests—the Disneys and Pfizers of the world—have become very good at clambering for more and more monopoly rights. Copyrights last almost a century now, and patents regulate “anything under the sun that is made by man,” as the Supreme Court has put it. This is the story of endless bloat, with each round of new monopolies met with a gluttonous demand for more.”

Lawrence Lessig in “Reboot the FCC”

Summary: Patent maximalism at the EPO can be pushed aback slightly if the European appeal board decides to curtail CRISPR patents in a matter of days

PATENT scope at the EPO has long been its clear advantage over, for example, the USPTO. Recently, however, the EPO put an end to this advantage, having allowed patents on things even that USPTO had long denied.

Right now in the US lobbyists and professionals who profit from the practice of patenting life/genetics are putting together events and reports to the effect that they want. They want to stop PTAB (the US appeal board), which uses decisions such as Mayo (at SCOTUS) to put an end to all this lunacy of patents on genetics.

What happens in Europe this week is noteworthy. The only media coverage we’ve found of it (so far) is this:

Today could play a pivotal role in the CRISPR patent landscape in Europe.

The European Patent Office’s (EPO) Opposition Division has begun its oral hearing into the eligibility of one of ten European patents covering CRISPR/Cas9 technology that has been issued to the Broad Institute of MIT and Harvard.

In April last year, the EPO issued a preliminary and non-binding opinion which found that European patent 2,771,468 was invalid.

“EPO opposition hearing just started,” Alexander Esslinger wrote a couple of days ago, adding: “The opposition hearing at the EPO against #CRISPR patent EP 2 771 468 of the Broad Institute starts tomorrow at 9 am and is scheduled for 4 days”

Lars de Haas wrote about T1955/13, but it’s interesting that not even patents-centric blogs are covering the above. None of them as far as we can see (and we have broad scope/optics).

This morning, perhaps even timed to coincide (today) with the proceedings of a similar (but not identical) case, a statement titled “Growing opposition to patents on seeds” was published to say:

Around 25 patents were approved last year, despite the EPO officially claiming that it no longer grants such patents. The patents cover crops such as lettuce, onions, tomatoes, potatoes, cucumber, grapes, sunflower, sorghum and soybeans. In response, there is growing opposition to EPO practice. And for the first time, a joint letter written by COPA/COGECA, No Patents on Seeds! and organisations from the organic sector has been sent to the EU Commission. COPA/COGECA is the largest farmers’ organisation in the EU and also represents many breeders.

Despite growing criticism, the seed giants are still trying to push their agenda of misappropriation of natural resources: Syngenta has asked the EPO to abolish existing restrictions. The company filed an appeal in August 2017, and this will be the subject of a public hearing at the EPO tomorrow.

The existing regulations prohibit patents on conventional (non-technical) methods of breeding and the resulting plants and animals. However, the way in which the EPO applies these rules makes them mostly ineffective: according to the new rules, adopted in 2017, plants and animals are still patentable if they are identified as inheriting genetic variations or random mutations that are relevant for breeding.

As we noted last year, European authorities already helped put an end to various EPs on life. Is more of that about to happen?

European authorities can hardly be described as patents-hostile. Yesterday, for example, an apologist of Battistelli (James Nurton) asked a loaded question: “How helpful is the EU Commission’s SEP guidance?”

How helpeful? It was not helpful at all, except for the SEP lobby!

To quote Nurton:

Both patent owners and implementers have welcomed the European Commission’s communication on standard essential patents. Does that mean it has successfully balanced competing interests or merely dodged the difficult questions? James Nurton investigates

Since this site began in 2006 we have primarily protested software patents; the only other type of patents we’re fundamentally against is pertaining to naturally-occurring things such as nature. Stop overpatenting. Or else the whole system will simply lose its purpose and perceived legitimacy.

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