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

South America: GNU/Linux Grew to 8.15% Venezuela, Steadily Over 3% Overall
holding steady above 3%
Clownflare (Cloudflare) Debt Grows, Losses Continue
debt of nearly $400,000 per employee
[Meme] GAGAM: Google, Apple, Gulag, Amazon, Microsoft, and the Rest
The Web has never been more dangerous and hostile
The L Word (Not Linux)
Championing Software Freedom is "dangerous"
It's Easy to Snyk in Marketing SPAM (and FUD) Into BetaNews
The latest marketing piece (disguised as information, not shameless self-promotion)
GNU/Linux at 4% in Algeria
So it more than doubled since last year
[Meme] The Failure of Microsoft Rebranding Campaigns
market share down, costs soared, back to basics
Why Your Web Site Should Also Support HTTP (Without 'Secure')
sites which force everybody to use HTTPS have an inherent accessibility problem
Microsoft Windows is Technically at 0% in Some Countries
It's not an important platform to target anymore
 
Links 03/12/2024: Googlebombing "Windows 12", Games Preservation, and Public Domain Game Jam
Links for the day
It's FOSS? No, It's SPAM.
Another sellout
Steven J. Vaughan-Nichols (SJVN) 'Works' for Linux Foundation (LF) on SPAM Campaigns, Just Like Spamnil's TFiR (Swapnil Bhartiya)
How can he publish something like this under his name?
Microsoft's Debt Ratio is Awful
It owes almost 150% of what it can give
Microsoft Has Already Laid Off Tens of Thousands of Workers, "Headcount" is Misleading Spin From Microsoft-Funded Sites
Expect Microsoft to suck up to Trump, looking for more bailouts (those typically manifest themselves in the form of "defence" contracts)
Gemini Links 03/12/2024: December Adventure and Social Justice Gone Wild
Links for the day
Microsoft Windows Falls to 12.5% in Cuba, Android Soaring
Windows isn't even doing too well on desktops/laptops
ChromeOS Isn't Freedom, But It's Killing Microsoft's Ability to Profit From Windows
ChromeOS has shot up to 22% in Sweden
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, December 02, 2024
IRC logs for Monday, December 02, 2024
Did IBM Layoffs Stop? Ask Dr. Krishna, The 'Genius' of IBM...
Trust AK to solve all the problems of IBM by creating bigger problems
[Meme] Sportwashing vs Code of Censorship (CoC)
Expectation of censorship (censor for me... or else!)
With 4 Weeks to Go (Before the End of 2024) the FSF Has Already Raised Close to 100,000 Dollars
The FSF must be doing something right
"Linux on the Desktop" (Less Than a Third of Web-connected Computers Still a Desktop or Laptop)
It's like we're chasing a goal that's 2 or 3 decades in the past
2 Years Have Passed Since ChatGPT Vapourware and Bing Gained Nothing, Yandex is About to Overtake Microsoft in Search
A cause for concern at Microsoft?
GNU/Linux Rises to 4% in Ireland, ChromeOS Grows and Android Takes Windows' Lunch
Windows down to 22%
[Meme] Meanwhile at Intel (Where the CEO Got the Boot)
Well, if taxpayers pay to save Intel, then Intel should be publicly owned (by those taxpayers)
A Cult of Fake Security
It's almost as if there's a coordinated effort to weed out and drive away people who are passionate about security for the users, as opposed to the financial security of companies like Google and Microsoft
Gemini Links 02/12/2024: Long Hair and Spirituality, Technology and Nature
Links for the day
Windows Not Even a 'Thing' Anymore... in North America (Where It Originally Came From)?
StatCounter shows Windows isn't even listed as a leading platform in any country in North America
Links 02/12/2024: Obesity Crisis to Worsen, Syrian Coups Rebound
Links for the day
Months After Mass Layoffs at Microsoft Nigeria Windows "Market Share" Collapses (Now Measured at 5%)
Of course the winner is Android (new all-time high of 77.3%)
Windows Measured at 5.7% 'Market Share' in Philippines, GNU/Linux Rose to 5%
It was 3.62% last month
South America Has Made It (Android Majority Everywhere) and in North America New Records for GNU/Linux Usage
Windows monopoly rents cannot be salvaged
Windows Down to Only One in Six Internet- or Web-Connected Devices in Asia
it's not looking good for Microsoft
Microsoft Windows Market Share in the United Kingdom Has Fallen to About 20%
Microsoft knows the true numbers, but it would rather not tell
statCounter: GNU/Linux Up to 4.6%, Windows Down Sharply This Month (Almost 22% Worldwide)
Let's see it the figures stay stable throughout the month
Figures of Note: Tesla's Debt Has More Than Doubled in Two Years and It's a Symptom of a Fake Economic Order
Cash infusions by taxpayers can create "billionaires" who aren't "job creators" (see what happened to Twitter) and bring no benefits to these taxpayers, only poverty
Linux Foundation Let Linux.com Rot for Two Months and Now It Posts Ridiculous Spam
Mindless shopping site
Links 02/12/2024: Journalists Arrested, Tesla Factories Destroying the Planet and Public Health
Links for the day
Gemini Links 02/12/2024: Adventures With Bevy, Google Very Evil, Jumping Into Gemini
Links for the day
BetaNews is Still a Shrine of Microsoft, and Casually Also an LLM Slop Factory
Fake articles, anti-Linux FUD, and Microsoft propaganda make a sound "business model"?
[Meme] Cyber Monday is Not a Thing; There's No Such Thing (It's a Corporate SPAM Campaign Plaguing the Web)
Enough with these fake 'holidays' that billionaires (business oligarchs) keep inventing to make more money at other people's expense (debt)
Software Freedom Conservancy (SFC) and Linux Foundation: Same Mentality of Revisionism and Plunder
Lie about history and then 'cash in'
[Meme] Software Freedom Conservancy (SFC) Begs You for Donations
How does one even spend 20,000 dollars per month???
Why Software Freedom Conservancy Does Not Deserve Money (Karen Sandler is Already a Millionaire and Her Organisation Attacks Free Software Leaders)
These people speak for "Big Money" interests, not for freedom
On the internet [sic] (Lowercase), They Spread Misinformation About the Internet
Hugh Grant remembers what happened before he was born
Richard Stallman Was Getting Honorary Doctorates Almost Every Year Until 'Cancel Culture' Stepped in, Distracting From Jeffrey Epstein's Ties to Bill Gates
This finally ended... earlier this year (October)
Self-Deprecating Attacks on RMS
Drew DeVault seems to have deleted all of his social control media accounts
When Bills Are Rising, Whereas the Demand Isn't (OpenAI is Insolvent)
Latest month on record shows traffic fell about 3 times lower than earlier this year
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, December 01, 2024
IRC logs for Sunday, December 01, 2024
Links 02/12/2024: Climate, Sportwashing, and Software Patents
Links for the day
Gemini Links 02/12/2024: Words and Apologies, Being Rude, and Geminauts 0.1.0 Release
Links for the day
today's howtos
some older leftovers
The Microsoft OSI: All the Latest Blog Posts Are Written by Microsoft Operative Salaried by Microsoft
OSI is truly occupied. Microsoft more or less 'bought' the OSI...
Links 01/12/2024: Russian Police Raiding Gay Bars, Zelensky Wants NATO Membership
Links for the day
Gemini Links 01/12/2024: Recycling and Interest in Computers
Links for the day
Links 01/12/2024: 23andMe's DNA Bubble Imploded, Web Server Survey Shows Microsoft Nosediving
Links for the day
Vulture funds war-gaming Ireland loss of corporation tax revenue, Donald Trump
Reprinted with permission from Daniel Pocock
Gerry Hutch & Debian: suicide by Monk?
Reprinted with permission from Daniel Pocock
Gerry 'The Monk' Hutch: criminals vs geeks, multinationals vs Ireland
Reprinted with permission from Daniel Pocock
"Microsoft suffered the next largest loss, down by 634,406 sites (-3.24%)"
Microsoft is now in only 2 of the 5 tables; over time Microsoft slips out of visibility in more categories
The Post Offices Have Turned Into Trash. They Swallow Packages and Only Spit Them Out If You Get Lucky.
Nom nom nom
Four Years of Videos (Self-Hosted, Not Social Control Multimedia)
Seeing how the "hey hi" (AI) hype spreads to GulagTube and ruins GulagTube, we're glad we need not worry about Google (Gulag) policing our "content" via supposedly 'free' (not really) platforms, such as GulagTube, the social control (multi)media "market leader"
[Meme] Hiding From Bullies Not the Solution
‘The only thing necessary for the triumph [of evil] is for good men to do nothing.’
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 30, 2024
IRC logs for Saturday, November 30, 2024
If You Support Free - is in Freedom/Libre - Software, Then Support the Free Software Foundation (FSF)
2024 was the most productive year so far
CNN's Front Page is About 250 Times Heavier Than Techrights' (Also Far Slower)
Those who value performance and users' experience will give bloat the boot
[Meme] What 'Social Justice Warrior' Has Come to Mean by 2024
People who have long called themselves "SJW" aren't exactly any of those things
We Already Know What Makes Techrights So Attractive to Online Abuse and Cybercrimes
Techrights helps explain how to dismantle the 'cancel culture' against Free software (it also names the key perpetrators)
Microsoft Controlling Apache by Proxy/ies
This is a broader attack on what "Open Source" actually means