Bonum Certa Men Certa

Patents on Life and Patents That Kill the Poor Would Only Delegitimise the European Patent Office

They're also not legal

EPO backlash



Summary: After Mayo, Myriad and other SCOTUS cases (the basis of 35 U.S.C. €§ 101) the U.S. Patent and Trademark Office is reluctant to grant patents on life; the European Patent Office (EPO), however, goes in the opposite direction, even in defiance of the European Patent Convention

TECHRIGHTS has long focused on software patents, but sometimes the subject of patents on life was brought up because it's equally if not even more controversial. It's not hard to understand why patents on nature and on life are insane. They're not inventions. The patent system wasn't made for this purpose. You breed some things and then all future generations of these things are 'owned' by you? Based on what? This is just a ploy, a cynical effort to privatise life itself. What next? Oxygen?

"This is just a ploy, a cynical effort to privatise life itself."McKee Voorhees & Sease PLC's Patricia A. Sweeney wrote a few days ago that "The European Patent Office Board holds a rule can no longer be used to Reject Plant and Animal Breeding Inventions" and it's behind a paywall; we wrote about this subject last week, as did many others. There were two main news stories: one about drugs and another about plants.

Médecins Sans Frontières (MSF) International should say more about patents on nature and on life, but in last week's appeal to the Office/public it focused on patents on medicine instead. That is expected considering MSF's goals, assuring access to medicines/medical treatment or removal of barriers that would otherwise -- in their absence -- have saved lives (many poor people die because of the patent monopoly, never mind if the treatment is cheap to produce). There was relatively late coverage about it here; these patents will certainly end up killing people if this goes ahead. To quote: "Recently, 6 European organizations appealed a European Patent Office (EPO) decision to uphold Gilead Science’s patent on the hepatitis C drug sofosbuvir, sold as Sovaldi. In March 2017, organizations from 17 European countries filed a challenge against Gilead’s patent that covers the base compound found in sofosbuvir, alleging that it lacked inventiveness. Despite the accusations, the EPO decided to uphold Gilead’s patent in September 2018, maintaining its exclusivity in the marketplace."

More press coverage, however, was dedicated to a decision from the EPO's Board of Appeal, potentially contradicting the Biotech Directive as one comment (among many) pointed out:

Well it's an exciting turn of events for patent attorneys also as it's not every day that an EPC rule is declared void.

National courts and the CJEU are bound by the Biotech Directive and so presumably are duty bound to follow the EU's interpretation of this, which is that the products of essentially biological processes are not patentable, and so I suspect claims to them will be declared invalid in any litigation.

Alas, I think this decision brings forward the day when the EU takes control of the EPO on the pretext of harmony, so whilst this little skirmish against the EU Commission has been won, the battle will ultimately be lost.


There are several more comments like this in IP Kat and Kluwer Patent Blog, mostly from patent maximalists with vested interests. It's those sorts of people who openly advocate CRISPR and antibody patents, as did this hours-old advert from a site dedicated to promotion of patents on life. Among their questions: "What are the differences between U.S. requirements and EPO requirements?"

"By aligning itself with some of the most loathed companies on the planet the EPO does itself irreparable damage."The US has long limited the scope of such patents. Likewise, patents on life itself aren't quite permitted in Europe, but the EPO doesn't care what law and practice say. The very founding document of the EPO (the EPC) is now being grossly violated and the EPO sets up events to 'normalise' this violation (as it does when promoting software patents in Europe under the guise of "AI", "blockchains" etc.), reminding us that the EPO is a rogue institution that totally disregards the rule of law.

Kluwer Patent Blog, a site of patent maximalists, wrote on Friday about the EPO's reaction to decision T1063/18 Board of Appeal (the above decision). Champagne at Monsanto (now part of Bayer in Germany), no doubt...

To quote:

The European Patent Office ‘will consider possible next actions’ together with the EPO Member States after a high-profile decision of a Board of Appeal earlier this week, concerning the patentability of plants. In case T 1063/18, the BoA decided that EPC Rules which were introduced by the EPO Administrative Council in 2017 to exclude plants or animals from patentability, were in conflict with 53(b) of the European Patent Convention and they can therefore be considered void.

The decision opens a new chapter in the debate concerning the patentability of plants or animals exclusively obtained by means of an essentially biological process. Late October the European Patent Office revoked a Bayer patent covering a type of broccoli adapted to make harvesting easier, because of the 2017 amendment of the Rules (27 and 28 EPC) by the EPO’s Administrative Council.

[...]

What will happen next is not clear. The organization No Patents On Seeds, which had hailed the revocation of the Bayer broccoli patent as ‘an important success for the broad coalition of civil society organizations against patents on plants and animals’, said a ‘chaotic legal situation’ has been created by the BoA decision. It declared: ‘This has put the EPO into conflict with its 38 member states that decided to stop these patents, such as those on broccoli and tomatoes derived from conventional breeding.’ No Patents On Seeds is clear about what it thinks should be the consequence of the BoA decision: ‘The EPO must suspend all pending patent applications on plants and animals until sufficient legal certainty and clarity is achieved.’

The exclusion of plants and animals from patentability was introduced by the EPO’s Administrative Council in the EPC two years ago, following a Notice of the European Commission, clarifying that the Directive on Biotechnological Inventions (98/44/EC) intended to exclude these products ‘exclusively obtained by means of an essentially biological process’. Earlier, in the decisions G2/12 and G 2/13 of 2015, the Enlarged Board of Appeal had ruled that certain tomatoes and broccoli were patentable.


So while the outcome of this isn't so clear yet, it doesn't look too good. I'm not against patents, I'm just pro-patent sanity and we're not there yet; now that the EPO ponders granting (yet again) patents on animals, life, nature, plants, seeds and so on how can one argue that patents reward actual inventors? These are not inventions. They patent nature itself; it's just as ridiculous as it sounds. We're not oversimplifying it! People should be up in arms and some are (there were EPO protests over it). Reported by Ben Wodecki just before the weekend were some underlying issues:

Pressure group No Patents on Seeds has accused the European Patent Office (EPO) of putting the office “into conflict with its 38 member states”, following a ruling on a patent on pepper plants.

Agrochemical company Syngenta attempted to file a European patent for a pepper plant with improved nutritional value. Examiners from the EPO denied the application as the patent’s claimed subject matter falls into the EPO’s exception to patentability under article 53(b) and rule 28(2) of the European Patent Convention (EPC).

In 2017, the Administrative Council of the EPO adopted a binding rule 28(2) for the interpretation of the EPC, which prohibits patents on process of conventional breeding, as well as on plants an animals derived thereof.


If EPO management wants to give 'ownership' of everything in your vegetable/fruit basket to companies like Monsanto (the very 'concept' of the life), what will the public think? By aligning itself with some of the most loathed companies on the planet the EPO does itself irreparable damage.

No patents on beer

Recent Techrights' Posts

Why Microsoft Accenture Has So Many Layoffs in Recent Years
The debt of Accenture doubled a year ago
 
The New Site ("New Techrights", SSG Since 2023) Exceeds the Old Site in Requests
The "New Techrights" gets about twice as many requests as the "old" (WordPress) "Techrights", the site of 2006-2023
20 Years Ago
Some time soon all this slop frenzy will become like yesterday's "blockchain" or "metaverse"
Gemini Links 01/02/2026: Zdzisław Beksiński and Disconnected Git Workflow
Links for the day
Talks About Nadella's Microsoft Exit After Chatter About Tim Crook Leaving Apple (Years Ahead of Retirement Age)
Mass layoffs and record debt do not represent a company's health.
We Still Cover the Same Problems We Spoke of 20 Years Ago
We're not easily seduced by "novelty" (new things), we try to judge them critically
Patents Standing in the Way
They also cause environmental harm
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, January 31, 2026
IRC logs for Saturday, January 31, 2026
IBM, a Microsoft Company
Microsoft and IBM as a pair go a long way back
A Lot Less GAFAM in Scandinavia
Are they reacting to geopolitics and risks from the US?
IBM Kills Companies It Bought (Neudesic Seems Like Latest Casualty)
Why isn't even a single publisher investigating those things?
Fake "Linux" Articles
Just because some platform has "Linux" in the domain name and/or site name does not imply that it is a news/Linux site
Gemini Links 31/01/2026: "Proof Without Content" and "Technology Connections"
Links for the day
Links 31/01/2026: Microsoft "OpenAI Representatives Are Going to Critics’ Houses With Threats and Demands", Its Proprietary Chaffbot Faces More Lawsuits
Links for the day
Links 31/01/2026: "Introducing Encrypt It Already" and "Huge Cache of Epstein"
Links for the day
A Can of WORMS - Part I - Trying to Throw RMS Under the Bus at MIT and Everywhere Else
This series won't give air to online 'trolls'
Mobbing at the European Patent Office (EPO) - Part I - An Introduction
When the series ends, some time around the second or third EPO strike of this year, we'll contact the relevant authorities and plead for intervention
The Solicitors Regulation Authority (SRA) Delusion - Part I - Who Regulates This Regulator? (Only Itself!)
We won't self-censor or prematurely terminate this series
Norway Almost Trusts Russia More Than the Bill Gates (Sleeping With Young Russian Girls) Company, Microsoft
Microsoft represents crime
Riddle Us This... (Jim Zemlin and Bill Gates)
Do these people even understand the literal meaning of "safe space"?
Is "Nobel Prize for Peace" a Sick Person's 'Code Word' for Gangbanging Now? Ask Bill Gates.
Watch all the Gates apologists getting all silenced/silent
BBC Gaslights Women Sexually Exploited (Many Under Legal Age) for Its Rich Sponsor, Bill Epsteingate (Gates)
Is this a national broadcaster or a propaganda tool "For Rent"?
Microsoft 'Open' 'AI' Reportedly About to Become Bankrupt, Seeking Emergency Cash Infusion (Loans)
the money promised to Microsoft 'Open' 'AI' failed to arrive
Gemini Links 31/01/2026: Deep Ice and Slide Rules
Links for the day
Writing About Abuse
Never ever allow misogynists to get their way if you strive to live in a decent society
MIT DEDP MicroMasters online learner's blog post about cover-up linked to resignation of Swiss financial regulator
Reprinted with permission from Daniel Pocock
Salary Erosion Procedure (SAP) as the Primary Reason for EPO Strikes
They focus on financials, as the corruption aspects are un-sayable or unspeakable, except in private
IBM Bluewashing: Feels Like IBM is Scuttling Neudesic (and Some of Red Hat)
We recently saw some Red Hat staff joining a Microsoft proxy
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 30, 2026
IRC logs for Friday, January 30, 2026
Microsoft Stock Collapsing Due to the Slop Bubble and Microsoft is Hiding Budget 'Black Holes'
Microsoft does not perform like it tells "the media" and "the market"
Gemini Links 30/01/2026: Love and Cultivation, Gemtext Anchors
Links for the day
Will Jim Zemlin Also Sell His Daughter or Only the "Linux" Brand (and Linux Foundation) to Bill Epsteingate?
Torvalds "ate a bug"
The Epstein Files Don't Say the Ages of Those "Russian Girls" Bill Epsteingate Exploited
This E-mail was sent around the time an arrest was made for pedophilia
Only One in 33 EPO Staff Voting on the Strike Opposed It
Kudos to all those who participated in the strike
Still Hoping for "Slop Zero" in 2026
We've also noticed that linuxiac.com shows a glimmer of hope this week
Links 30/01/2026: Waymo Crashing Into 'Small People' (Children), Microsoft at Risk Due to Slop Debt
Links for the day
Amutable’s Management and Founders Are 100% Microsoft!
It'll be focused on promoting Microsoft's agenda in everything it does
IBM Tries to Get Rid of Workers Without Paying Them (and It Appears to be Working)
be sure to speak to people who actually work there
He Has No Money, But He Has Power, He Has a Voice
That's why they envy and attack him
Free Software in Swiss Media This Week
RMS is still going places with his Migros bag (Swiss retail giant)
TV Programs Disseminate False Numbers of Microsoft Layoffs (About 31,000 Laid Off Last Year, Not Including PIPs, Contractors and so on)
large-scale layoffs are inevitable, no matter how long Microsoft delays or procrastinates
Links 30/01/2026: Microsoft's "OpenAI Is Headed For Bankruptcy" and Bitcoin Crashes
Links for the day
Why Would Anybody be Afraid of Talking to Richard Stallman?
We need to get rid of the baseless stigma
Amutable is a Microsoft Proxy Like Xamarin, With Some IBM/Red Hat Staff Added for Good Measure
Amutable chasing money and trying to impose TPM etc. on everybody
The Letter Sent to the Ringleader of the Alicante Mafia This Week
Call for industrial actions to stop the salary erosion of EPO staff
EPO on Strike
organisation operating outside the Rule of Law
Oracle's Debt Exploded by 22 Billion Dollars in 6 Months, the Ponzi Scheme With Scam Altman Was Classic 'Pump and Dump'
The founder of Oracle now uses his wealth for right-wing ideological reasons, nothing else
Facebook ('Meta') is Dead Meat, This GAFAM Company's Debt Exploded by Almost 33 Billion Dollars in Just 3 Months (11 Billion Per Month)
we can expect many sales/contracts to get canceled
Australia's top nurse takes on Musk, Zuckerberg & rogue health influencers, birthkeepers
Reprinted with permission from Daniel Pocock
Affirming What We Already Know: Solicitors Regulation Authority (SRA) is Profoundly Incompetent
"SRA ordered to pay solicitor £50k in costs after failed prosecution"
The "Alicante Mafia" - Part XVI - The Associates of Mr. Cocainegate Don't Want to Talk About Cocainegate (Right of Reply)
Nobody wanted to talk about cocaine at the EPO
The "Open Source" (Corporate Openwashing) Fake Community Rejects Democracy, Open Source Initiative is in Effect Dead
This is basically the end of the OSI
Cracks and Holes in Microsoft's Slop Bubble (Also, Windows is Declining)
"More Bad News For Xbox As Microsoft Blames Gaming For An Annual Decline In Its PC Business"
Microsoft's Debt Exploded by More Than 20 Billion Dollars This Past Year, Says Microsoft
Expect more mass layoffs
Strike at the EPO Today
Next month we'll start a new EPO series
State of the Slop and The Register MS Runs Ads as 'Articles'
Yesterday we could not find much slop about "Linux"
Gemini Links 30/01/2026: Announcing Crossyword and SYN Attack
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, January 29, 2026
IRC logs for Thursday, January 29, 2026