Bonum Certa Men Certa

Patents on Life at the EPO Are a Symptom of Declining Patent Quality

Two dolphins



Summary: When even life and natural phenomena are deemed worthy of a private monopoly it seems clear that the sole goal has become patenting rather than advancement of science and technology; media that's controlled by the patent 'industry', however, fails to acknowledge this and plays along with privateers of nature

THE legal certainty associated with US patents is very low. That's because the USPTO spent decades granting truly dubious patents. The EPO's patent quality problems threaten to do the same to European Patents (EPs).

Earlier this year the EPO's Opposition Division rejected a patent on life, causing Broad Institute to panic. Are patents on life itself still worth anything? Are EPs on CRISPR without merit? That opposition suggested so.

Yesterday Kluwer Patent Blog wrote about a test at a Danish court, i.e. outside the EPO itself, noting that a couple more EPs may be meritless:

In 2015, the EPO Opposition Division upheld EP 138 after the appellant withdrew its opposition. In that connection, EPO held that Howell et al. and McLeskey in combination did not take away inventive step.

In a subsequent decision, in 2017, the EPO Opposition Division held EP 573 invalid for lack of inventive step and the Opposition Division noted in that connection that it disagreed with the conclusion reached in relation to EP 138, now holding that in combination with the knowledge derived from the articles by Howell et al. and McLeskey there was no inventive step.

The Maritime and Commercial Court held that the EPO decision regarding EP 573 must result in a material weakening of the presumption in favour of that patent being valid, and the fact that the decision had been appealed by AstraZeneca could not lead to a different assessment, even if the EPO appeal had suspensive effect.


Yesterday we also spotted a couple of announcements from Doctors Without Borders/Médecins Sans Frontières (MSF) International [1, 2], taking stock of an opposition with the following statement:

This week in Munich, the European Patent Office (EPO) will hear a legal challenge filed by groups in 17 countries against an unmerited patent that allows US-based pharmaceutical corporation Gilead Sciences to charge exorbitant prices in Europe for the key hepatitis C drug sofosbuvir. The organizations Médecins du Monde (MdM), Doctors Without Borders/Médecins Sans Frontières (MSF), and Just Treatment are among the patient and treatment provider organizations* that challenged the validity of a Gilead patent on sofosbuvir on the grounds that it does not fulfill the requirements to be a patentable invention from a legal or scientific perspective. The groups today, once again, urged the EPO to rethink its decision that gives Gilead this monopoly. The EPO will hold a public hearing on September 13-14 to make a decision on the case.

If the patent challenge is successful, it would be a major step toward allowing the production and importation of affordable generic versions of sofosbuvir in Europe, protecting health systems across Europe from illegitimate financial burden due to excessive corporate pricing of this drug. The extremely high prices in Europe of newer hepatitis C medicines—called direct-acting antivirals, or DAAs—has led civil society organizations to investigate and subsequently challenge the monopoly status and legitimacy of such patents.


Public interest or the Commons play a role here, irrespective of patents on nature/life/biology.

Going back to Broad, whose controversial EPs may be thrown out by the Boards of Appeal, Patent Docs wrote about it this week in relation to Regents of the University of California v Broad Institute, Inc. (Patent Docs is in general a loud proponent of patents on life, as this latest post by Bryan Helwig reminds us again). To quote:

Barring the unlikely event that the Federal Circuit rehears en banc today's decision in Regents of the University of California v. Broad Institute, Inc. (or, even more unlikely, that the Supreme Court grants certiorari), the interference between the Broad Institute and the University of California/Berkeley is now concluded. The Court affirmed the Patent Trial and Appeal Board's decision (see "PTAB Decides CRISPR Interference -- No interference-in-fact"; "PTAB Decides CRISPR Interference in Favor of Broad Institute -- Their Reasoning") that there is no interference-in-fact between the Broad's twelve patents (the Federal Circuit citing U.S. Patent No. 8,697,359 as being representative) and one application-in-interference patent and University of California's pending application (Application No. 13/842,859).

[...]

The consequence of this decision (assuming it is the final word) is that the status quo will remain: the Broad will maintain its extensive CRISPR patent portfolio and the University's patent application (reciting claims broader than the Broad's and encompassing CRISPR without regard to the cells in which it is practiced) should grant as a patent in due course. Under these circumstances, a third party wishing to practice the technology in eukaryotic cells (encompassing everything from yeast to man) would need a license from both the University and the Broad (absent the parties coming to an agreement on how their overlapping technologies will be licensed). This circumstance cannot fail to retard commercial adoption of the techniques, providing further impetus for some sort of co-licensing agreement between the parties to be forged.


Broad Institute's case was also mentioned by Managing IP yesterday. Michael Loney wrote about how CAFC is backing PTAB as usual:

In a closely-watched CRISPR patent case, the Federal Circuit says the PTAB did not err in concluding that Broad Institute’s claims would not have been obvious over the University of California’s claims


Our view is that all CRISPR patents need to be voided. Life is not an invention. Where does Managing IP stand on this matter? Ellie Mertens' (Managing IP) summary says: "How can reproductive technologies be protected when they relate to natural processes? Is a human gamete or embryo a “human organism” in terms of patent law?"

Why is this even a question? Why entertain the patent 'industry' in trying to answer such questions? The utter insanity of trying to patent life itself -- and after much lobbying succeeding at it -- just comes to show the great influence of money. It's no secret that large firms with patents in these domains buy politicians to shield their patents from PTAB.

Recent Techrights' Posts

Sponsored by Linux Foundation
All the pages are full of 'Linux' Foundation ads that are not about Linux
It's Hard to Dispose or Get Rid of Swasticars Now
'Memecars' only sell as long as people have a 'belief' in them
 
The Fall of the Open Source Initiative (OSI): Microsoft-Sponsored OSI is Probably Not Even the Real Steward of the Open Source Definition, It's More Like an Identity Thief at This Point (Like "FSFE", a Microsoft-Sponsored Imposter of FSF)
As we'll show later, many people (even inside OSI) are very angry at the OSI right now
Gemini Links 12/03/2025: Cataloging Books, Ramen, and MElon
Links for the day
Links 12/03/2025: Anti-Union Actions and New Efforts at Truce/Ceasefire in Ukraine
Links for the day
CodeWeavers Ads Weaved by LLM Slop at BetaNews
How much of this was even touched by a human being?
Springtime Plans
We currently have two long series underway
In Australia, iOS Estimated to be Bigger Than or Equal to Windows
Not even counting macOS
Brett Wilson LLP Does Not Deny Microsoft or Another "Third Party" Secretly Funds the SLAPPs Against Techrights, Bankrolling Despicable People Who Deserve Criticism
Writing about crime is not a crime
Gemini Links 12/03/2025: LLM Slop Lacks a Future, Wordle Clone Comes to Gemini Protocol
Links for the day
Using FUD That Blames "Linux" for Typos, Turning It Into LLM Slop That Blames "Linux" for Typos
It is probably the "leader" at LLM slop (fake 'articles') about "Linux"
Links 12/03/2025: Big Cuts to US Education and Science (e.g. NOAA)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 11, 2025
IRC logs for Tuesday, March 11, 2025
Crossbow murders: prevention, missed opportunities
Reprinted with permission from Daniel Pocock
This yt-dlp Bug Report Shows Us That the Future of YouTube is DRM and It's Time to Leave (yt-dlp Should Also Leave Microsoft GitHub, Which Censors YouTube Downloaders)
GAFAM traps aren't "free hosting"; they herd us all into a world of tollbooths and locks, surveillance and planned obsolescence (you own nothing, you only rent)
Ukraine Didn't Take Twitter/X Down, Microsoft or Windows Likely Did
There are many debunkings (to likely false accusations), but won't that just be another example of Windows TCO, exacerbated externally in the form of Windows botnets?
The Fall of the Open Source Initiative (OSI): Worse Than What the Media Has Focused on, Losing Sight of Who Owns and Runs the OSI
Members' dues are less than 3% of the income; where does the 97+ percent come from other than Microsoft?
Apple Seems to Have Run Out of Things to Boast About After Apple Vision Pro Failed Spectacularly
With "Apple Intelligence", Apple has finally named a product after what target customers lack
Slopwatch: Reckless FUD and Machine-Generated Spam from LinuxSecurity.com, cybersecuritynews.com, and gbhackers.com (Google Boosts LLM Slop About "Linux")
Google and so-called 'Google News' continue to yield anti-Linux misinformation
Gemini Links 11/03/2025: 'Chainsaw Politicians' and Proprietary Software Hell
Links for the day
Links 11/03/2025: Covid-19 5 Years On and Violence in Syria
Links for the day
Links 11/03/2025: NASA Besieged and "DOGE Has Become What It Claimed To Destroy"
Links for the day
Fresh IBM Layoffs Reported in Europe and North America, Jobs Allegedly Moved to South Asia (Low Salaries)
As usual, IBM does not talk about this
Illuminating Injustice is Critical When Reckless Microsofters and Law Firms Try to Silence Reporters of Violence Against Women
I want to clarify that I'm well within my right (and not running afoul of any rules) by explaining what goes on here
EPO Central Staff Committee: "The Strategy of the Office Lacks Transparency and Cannot be Understood"
Microsoft and the EPO violate data protection laws
Microsoft Has Not Much Left to Show Investors, Shares Fall Almost 20%
It's not even clear how Microsoft makes money anymore
Links 11/03/2025: Spring and Misfin Server
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 10, 2025
IRC logs for Monday, March 10, 2025
Latvia (and Lithuania) Stepping Away From GAFAM, Microsoft
Windows becomes unessential as Android and GNU/Linux rise
Microsoft Layoffs Are Infectious (Don't Get Acquired or Become a Partner)
It seems like companies choosing to become "buddies" with Microsoft are dooming themselves and their products
The Fall of the Open Source Initiative (OSI): The OSI Election is Rigged, Biased Against People Who Oppose the Openwashing of GPL-Violating Bots Operated by Microsoft for Profit (OSI Gets Paid to Promote This)
they reckon that pretence of calm would serve them best, helped by puff pieces
A Closer Look Inside the EPO, Courtesy of Benoît Battistelli's Submissive Lapdogs Roberta Romano-Götsch and Elodie Bergot
new report comes from the Local Staff Committee Munich (LSCMN)
In Vietnam, statCounter Sees Microsoft Windows Falling Below 7% "Market Share"
Can Microsoft still demand $500 or more per Windows licence?
Links 10/03/2025: Staff Strikes, Mass Layoffs in Gaming Industry
Links for the day
Gemini Links 10/03/2025: "Eat The Rich" and Two-Year Anniversary of the 'Space Elevator' Orbit (Like 'Webring')
Links for the day
Links 10/03/2025: Small Web Praised, LLM Chatbots Exposed as Worse Than Useless Again
Links for the day
A Call for GNU/Linux and BSD Developers to Unite Against GAFAM and the Regime They Empower
We have long encouraged and continue to encourage people who value Software Freedom to altogether boycott GAFAM
The Ludicrous Mythology of Commonality as Signal of Value, Merit, Popularity
Devalue what's true, promote marketing?
[Video] Richard Stallman on the Four Essential Freedoms (Manuel Cuda News, 2025)
Added to a channel several days ago by Manuel Cuda News
Gemini Links 10/03/2025: Realisation About Young People, Punks, and Discord IPO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 09, 2025
IRC logs for Sunday, March 09, 2025