Bonum Certa Men Certa

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

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.

Recent Techrights' Posts

Brett Wilson LLP Seem to Have Had Only One Litigation Client in 2025, He Was Previously Charged, Just Like the Serial Strangler From Microsoft (Whom They Now Represent)
Karma is superstition, regulators are not
Project 2030 to Cover How "Project 2025"-Styled Anti-Media Zealots From America Targeted Techrights and Tux Machines
The common denominator is also their attacks on women
Brett Wilson LLP Failed to Meet Deadlines Set by Judge 7 Months Earlier, Tried to Ruin Our Holiday, Then Had the Audacity to Ask Us for Over 3,000 Pounds for Its Own Lateness
As a matter of principle we will never respond to assassin while we are on holiday
Americans Attacking British Sites Only Months After They Leave America
We find it kind of funny if not ironic that this site, originally an American site, got legal harassment only from Americans and only months after it had moved to the UK
Despite Losing Over a Quarter Million Dollars a Year Software in the Public Interest (SPI) Gives Helping Hand to Libreboot
SPI's financial state depends a lot on its public image or its reputation
If You Want to Know the Future, Listen to the Free Software Foundation (FSF) and Andy Farnell
We're sure the FSF will have plenty of its own output
 
Microsoft E.E.E.: Git Will Now (or Very Soon) Fully Depend on Rust, Which is Controlled by Microsoft
Microsoft now makes Git dependent on Rust, or making Git dependent on GitHub, which is proprietary
The Right to Punch People (Apparently)
At Brett Wilson, Brett's job title is "Head of Crime" and Wilson normalises calls for violence
Slop or Fake Articles Have Turned Linux Journal From a Pioneering/Trailblazing "Linux" Magazine Into a Nuisance
some sites with former reputation - good reputation - turn into cesspools
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 18, 2025
IRC logs for Thursday, September 18, 2025
On Claims That After Bluewashing Red Hat Will Increasingly Become an Indian Company
Discussed this week (long and detailed)
Slopwatch: Google Helps Plagiarism and Sends Traffic to Ripoff Artists
That Google as a company helps spamfarms is noteworthy
Links 18/09/2025: A Taliban Ban on Internet Access and Troubled US Job Market
Links for the day
Gemini Links 18/09/2025: Computer Literacy and Accessing Alhena's Database
Links for the day
Links 18/09/2025: US War on Media (Truth Banned, Cancel Culture by the Hard Right), NYT Chief Executive Warns Cheeto is Deploying ‘Anti-press Playbook'
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 17, 2025
IRC logs for Wednesday, September 17, 2025
Slopwatch: Fake Articles, Fake Text, Fake Images, Negative Slant on "Linux"
Google News has lost its value; the signal-to-noise ratio has fallen off a cliff
Gemini Links 17/09/2025: Relax-and-Recover on Proxmox and New Smolweb File Transfer Service
Links for the day
Fact: EFF Got Corrupted by Corporate Money. Microsoft Lunduke (Political Noise): The Issue With EFF is, It Kills Babies.
Microsoft Lunduke - as usual - finds a way to make it about abortions
Pacing Publication Up a Bit
The news cycles have gotten rather light and slow
Links 17/09/2025: Power Outages, Digital Controls, and Attacks on the Mainstream Media (by Insecure and Corrupt Dictators)
Links for the day
Gemini Links 17/09/2025: Flashing LineageOS and ROOPHLOCH
Links for the day
Links 17/09/2025: Long COVID Study, "Exposing Pegasus", and Chatbots Exposing Sensitive Data
Links for the day
Links 17/09/2025: Secret Settlement for Internet Archive and Google’s LLM Slop Summaries Attracting Lawsuits
Links for the day
The True Cost of 'Generative Models'
Funded and promoted by the companies that profit from the waste
'Big Slop' Attacks Contemporary Information/Knowledge and Creative Works, 'Big Copyright' (Cartel) Attacks the Old
Someone at IA will hopefully "blow the whistle" on what they actually agreed
Why We Find It Difficult to Trust Rust
A comparison between C/C++ and Rust
Slop Nihilism is Funded by Big Oil
Eventually human civilisation will destroy itself
Watching the OSI: Our Series Will Carry on Irrespective of the Chief's 'Resignation'
the OSI isn't even the real guardian of the term "Open Source"
Professor Eben Moglen Recovering From Open Heart Surgery
From his public pages (this is not secret)
Just What LibreOffice Needs? Another Language? (Rust)
what's all this concern about memory safety?
Many Microsoft Managers Are Leaving
"Hey hi" chaff or chaff about "hey hi" cannot eternally distract from the difficulties inside the company
There Are Red Hat (IBM) Layoffs, But Google News is Infested With Slopfarms
It contributes a lot to misinformation and it encourages plagiarism
Tomorrow, Microsoft's Tim Anderson's 'The Register MS' Offshoot Will Have Been Inactive for 2 Months (There's Also a Slop Problem)
We've already caught The Register MS using LLM slop for articles
Microsoft's Chief Legal Officer Leaves Microsoft After Nearly 30 Years
And not retiring
Even Windows Users Are Having Problems With "Secure Boot"
When it comes to security - Microsoft strives for the very opposite
Another Competition Crime of Microsoft, Long Facilitated and Advocated by a Bad Actor, Who is Funded by a Third Party to Commit Extortion Against People Who Have Correctly and Repeatedly Warned About It for Over 13 Year
We must always go back to the core issues
3 More Reasons to Replace Mozilla Firefox With LibreWolf
Thankfully there are de-enshittified versions of Firefox
USA Not a Place for Free Speech
In America, as in the US, the attacks seem more enhanced or advanced these days
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 16, 2025
IRC logs for Tuesday, September 16, 2025
Links 17/09/2025: Google Layoffs in "Hey Hi" (AI), Perplexity Hit With More "Hey Hi" (Plagiarism) Lawsuits
Links for the day
Gemini Links 17/09/2025: Reclaiming Things in a Digital Age and Moon Phases in CGI
Links for the day