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

IBM: Many Thousands of Layoffs in 2025
If 2025 is expected to be the same, then perhaps about 20,000 IBM workers will no longer be there
Google: Your Only Option is Google YouTube (Coming Soon: Mandatory DRM and Attestation?)
Digital Restrictions (DRM) to follow? Only for "approved" (attestation) browsers?
The Munich-Based EPO is Still Using a Platform That Promotes the Far Right and Rehabilitates Nazism
Active Twitter account
How the EPO Pressures Staff Into Minting More Monopolies (Patents), Even Illegal Ones That Harm Europe and Ultimately Dismantle the Rule of Law
insights into the pressure examiners are under
LLM Slop Machines Are Not a Win for "Open Source" and If They Get Cheaper, It's Even Worse
If some program that claims to be "Open Source" pollutes the Web with fake articles (Microsoft SPAM and fake "Linux" articles), whose win is it?
Richard Stallman Speech in Bengaluru, "Silicon Valley of India"
62 years have passed since his "young nerd" days and he's still at it
 
Links 30/01/2025: Microsoft Wants Convicted Felon to Give Fentanylware (TikTok) to It (After Making a Phonecall Asking for That in 2019), "Moving Away From Google's Ecosystem"
Links for the day
Jack M. Germain (LinuxInsider) Seems to Have Turned to LLM Slop, Graphics Slop, and B2B SPAM
LinuxInsider is barely active anymore
Links 30/01/2025: Amazon Layoffs and DeepSeek Panic
Links for the day
Gemini Links 30/01/2025: Chaos Reigns, E-mail, Searching
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 29, 2025
IRC logs for Wednesday, January 29, 2025
Mastodon Was Always Biased (Just Like Twitter After Abandoning Chronological and Neutral Timelines in Order to Become More Like Facebook)
So bury-brigading and click-farming control what people see
Certificate Authority Let's Encrypt Falls to Only 0.4% of the Total in Geminispace
Geminispace does not need to outsource trust
Links 29/01/2025: Dismantling Public Health in the US, Air Busan Plane Up in Flames (South Korea's Air Disasters Streak)
Links for the day
Announcements and Administrivia
This week we're going out for two days in a row to celebrate an achievement that's very respectable
Gemini Links 29/01/2025: Japan, GTD, and More
Links for the day
Sir, Yes, Sir. The Life of EPO Patent Examiners.
If working for the EPO makes it harder to sleep at night, take action
Links 29/01/2025: Data Privacy Day and Growing Tensions in Europe
Links for the day
Nazi Twitter (aka "X") Became a Troll Site That Lets People Buy a Blue Tick While Its Boss Actively Promotes Neonazi Politicians
the intellectual level of people who infest the Web through "Twitter" or "X"
This is Why They're So Afraid of Richard Stallman (He Tells People the Correct History)
Then they post about it to Microsoft's LinkedIn
Claim: Facebook Deletes Posts of IBM Red Hat Critics
As always, follow the money (advertisers)
Links 29/01/2025: Climate Crisis and "It’s time for the Xbox to fade away" (Microsoft Lose)
Links for the day
Links 29/01/2025: Buying Groceries During a Trade War, Political 'Retro'
Links for the day
More Illegal Patents at the EPO, Legality of Granted European Patents No Longer Matters to the Office
breaking the law for profit
Network Improvements Tomorrow
"Network maintenance" down in London
Sharing is Caring (But Advocating Copyleft Makes You a "Target")
GPLv3 does not close all the loopholes which the "Affero" helps close
Articles About Free Speech at Facebook
'Facebook vs Linux' story is now receiving a lot more media coverage
We Were Right About stallmansupport.org Making an Error by Joining Social Control Media. mastodon.social Suspends stallmansupport.org.
From what we can guess, accounts can be banned by some oversensitive admin or a mob of users ("bury brigades")
"Latest Technology News" in BetaNews Still LLM Slop and SPAM Composed by LLMs (It's Basically a Spamfarm Disguised as a News Site)
Only a fool would visit BetaNews in search of actual news
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 28, 2025
IRC logs for Tuesday, January 28, 2025
The EPO's Corruption, If It Remains Untackled, Helps the Far Right and Enemies of European Unity/Solidarity
Do not negotiate with evil
The Web, Including Wikipedia, Gets Filled With Lies About Bill Gates, Added by Bill Gates and His PR Team
Of course Wikipedia is funded by Gates
Facebook Banning Linux Sites (or People Who Link to Linux Sites) is Another Symptom of the Web's Demise
The state of media on the Web is really bad; Social Control Media amplifies the badness, as Facebook serves to show
Gemini Links 29/01/2025: Neovim Telescope and Writing Less
Links for the day
Links 28/01/2025: Chaffbot as Commodity Fad, New Import Restrictions in Thailand
Links for the day
Links 28/01/2025: "Against Social [Control] Media", "Smart" Buses' Ticketing System Cracked
Links for the day
[Video] Richard Matthew Stallman (RMS) in India, Talking About Proprietary Software's Dangers Only Yesterday
WebM file
Gemini Links 28/01/2025: Thinking About Not Much, Computing Fatigue, the Curse of JavaScript
Links for the day
"SuccessFactors" (SAP) Stunts at the EPO Used to Break Laws and Constitutions, Staff Tricked Into Harming Themselves
Ongoing corruption and lawlessness became the norm; Europe's second-largest institution (EPO) along with the largest institution (EU) has its very own Minsk
The GNU Manifesto Turns 40 in a Few Weeks
The FSF turns 40 later this year, too
Continued Support and Momentum at the Free Software Foundation (FSF)
"This helps protect our community."
Another Talk by Richard Stallman Tomorrow, This Time in Bengaluru
This means that in January 2025 he is giving at least 5 public talks
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 27, 2025
IRC logs for Monday, January 27, 2025