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06.09.18

Patents on Nature, Life and the Environment: Lessons From EPO and Australian Courts

Posted in Australia, Europe, Patents at 6:35 am by Dr. Roy Schestowitz

Monopoly does not solve issues; especially when granted on things that always existed

Iguazu Falls

Summary: The subject of patent scope revisited in light of news and views about patents “on life” (typically DNA, genetics, plants, seeds, animals); we focus on Europe and on Australia, which is known for CSIRO’s controversial patent-related activities

THERE are different types of people in the patent “profession” (or domain), ranging from examiners to litigators. There are also different mindsets, ranging from patent rationalists to patent extremists, where the extreme views pertain to patent scope, litigation zeal, and sometimes boil down to fundamental hatred of science and technology (that’s what sites such as Watchtroll stand for).

“It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest.”We don’t want to generalise and we also recognise that many people read this site because they want to read alternative viewpoints, recognising that Techrights is not against patents but pro-patent reason. It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest. It should adhere to common sense, economic models, and scientists’ interests, not law firms’ interests. Lawyers should ideally be there to help the scientists, not just to help themselves. In practice, however, this rarely happens, as we shall explain in our next post (about UPC).

“Lawyers should ideally be there to help the scientists, not just to help themselves.”Hogwash from Joanna Rowley (Haseltine Lake, LLP) came just before the weekend, both in their Web site and others (throwing copies elsewhere), titled “World Environment Day – How patents are saving our environment”.

They’re piggypacking “World Environment Day” for self promotion. Giving people a monopoly on how to improve things actually harms, prevents solutions from being implemented. We wrote this many times before in response to greenwashing of patents by EPO management. There’s also the class of patents which pertains to nature and life; those are even more problematic.

EPO insiders are generally aware of the limits of patenting and why these limits are needed. “Stop patents on life,” one of them told us the other day, is something we “might be interested in.” The insider linked to “Patente auf Leben stoppen!” (in German). We wrote about this subject many times before, since more than a decade ago. So did many patent critics like Kinsella, whose latest episode is titled “Nothing Exempt”. Kinsella is one of those former and disgruntled insiders, who nowadays advocates even abolition of so-called ‘IP’. He’s pretty high-profile a voice and we assume many of our readers are already familiar with his work (we covered that many years ago).

“This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least).”That brings us to some news from Australia’s top court. As should be obvious, at the very least based on the “Australia” section of our “Software Patents Around the World” page, we are mostly interested in Australia because of its software patents stance/policy. On few occasions we wrote about Australian patents on life itself, as ‘championed’ by CSIRO in Australia. This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least). People and firms have begun questioning whether it’s even worth pursuing patents on DNA/genetics in Europe anymore.

A new article by Michael Zammit and Scott Philp (from the software patents booster, Shelston IP) speaks of “strategic use and management in the resources sector” (in relation to patents). Another new article by Kazumasa Watanabe, Anthony Muratore and Stephanie W. Wang (Jones Day) has just been plugged into Mondaq, taking note of a new case at the High Court of Australia. Background and conclusion/outcome/closing words below:

Pfizer manufactures and supplies the biological medicine Enbrel (etanercept), used in the treatment of autoimmune diseases. Pfizer brought an application pursuant to rule 7.23 of the Federal Court Rules 2011 for preliminary discovery of certain SB confidential documents that Pfizer believed would enable it to decide whether or not to commence proceedings for patent infringement against SB. The patents in suit concerned processes relating to one of the phases in the development of biological medicines.

[...]

On appeal, the Full Court allowed Pfizer’s appeal: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193, holding that preliminary discovery applications are not intended to be mini-trials. The essence of rule 7.23 focuses on what “may” be the position. The foundation of any application is that the prospective applicant reasonably believes that it may have a right to relief; that is, the belief must be reasonable and about something that “may be”, not “is”, the case.

In practice, to defeat such a claim, it will be necessary either to show that the subjectively held belief does not exist or, if it does, there is no reasonable basis for thinking that there may be such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views may be held with which others disagree, but that does not make the views necessarily unreasonably held.

Therefore, the relevant question was not whether one scientific view was more or less persuasive than another but, rather, whether Dr Ibarra’s views so lacked foundation that Mr Silvestri’s reliance on them did not demonstrate that he reasonably believed that Pfizer may have a right to obtain relief. As Dr Ibarra’s views were not criticised as ones that could not reasonably be held by anyone in her position, this question was answered in the negative.

In its special leave application to the High Court, SB argued, inter alia, that the Full Court shifted focus away from an objective assessment of the facts as to whether a reasonable basis was provided for the prospective applicant believing it may have the right to relief to an assessment of the subjective state of mind of the particular deponents who asserted the relevant belief. However, the High Court was not persuaded to grant special leave to appeal.

The Australian system (especially the legal system) follows the structures and standards of the old English system and is heavily inspired by the US. When it comes to patents, there’s not much difference either. We are glad to see that software patents are on their death throes in Australia and hope that the same will happen to patents on nature/life. Those aren’t the sorts of ‘inventions’ the patent system’s founders had in mind at this system’s inception time.

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