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

Gemini Links 09/08/2026: Meatballs (1979), Gopher, RSS Experiment
Links for the day
IBM's "Next Step" Program
Apparently close to 1,000 people being laid off by IBM wasn't worth reporting
If GNU/Linux Rising is Just "Bots" (It's Not, Many Surveys Show the Same), Why Does Microsoft Rush to Lie About System Requirements of Vista 11?
The real reason is, GNU/Linux is rising
 
Links 09/08/2026: US Blackouts (Energy Wasted), Slop to Evade Accountability, and Software Patents Framed as "Hey Hi"
Links for the day
Gemini Links 09/08/2026: Parakeets in Britain and Rant About 'Modern' Washing Machines
Links for the day
Links 09/08/2026: Social Control Media Weaponises Immigration, Europe Suffers Severe Drought, and "Internet of Stuff" Explained
Links for the day
SLAPP Censorship - Part 144 Out of 200: The "Hired Guns" ("Media" at BW) Shrank Almost Three-Fold Since They Sued Us in 2024
No wonder they're so visibly outnumbered
10 Days Ago Red Hat Formally Terminated Employment of About 500 Technical Workers (the Media Didn't Mention This)
IBM has nothing left to do except fire people (in secret) whilst attacking sites that give these people a voice
Freenode Continues to Shed Off Servers and Users, Good Thing We Abandoned It
you cannot sell communities. It leads to chaos
Daniel Pocock in the Sunday Times (Today)
Expect the attacks (from Pocock's haters, motivated by envy) to intensify
Controlling One's Platform
We need to strive for or actively pursue a Web where everyone has their own platform/s and where censors ("moderators") have no direct control over these platforms
Improving the Static Site Generator (SSG), Fixing Bugs
Next month the site's SSG turns 3
2026: The Year Richard Stallman Came Back to American Campuses
There's more on the way
XBox is Rotting Away, Technical Issues for Second Time in Two Weeks
XBox is dying
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 08, 2026
IRC logs for Saturday, August 08, 2026
Red Hat is in Need of a 'Jolla', as an IBM-Controlled Red Hat is Becoming Like the Microsoft-Infiltrated Nokia
Dying fast, partly by design
Gemini Links 08/08/2026: Gigs, Poems, SREs, and Shared Passion
Links for the day
Kompromat Tactics in GNU and Linux
Kompromat as a concept was covered here in the past in relation to Microsoft
SLAPP Censorship - Part 143 Out of 200: After Nearly 10 Attempts to Settle With Us and Over a Million Pounds Spent on Lawyers and Barristers
We are in no particular hurry
20 Years and 43 Years
GNU/Linux is not just code, it's a philosophy, licence (copyleft), and community
GNU/Linux Turns 43 Next Month, Many Distros Actively Maintained
A lot of Debian-based distros are still actively maintained (we talk about this in IRC this evening), so the stability of the Debian Project is important
Links 08/08/2026: GAFAM Colonialism "Paved Over Protected Wetlands", Slop Companies Hoard Software Patents as Debt Soars to Trillions
Links for the day
Links 08/08/2026: "Palantir Paid No Federal Income Tax" and "Who's Responsible for This Mess?"
Links for the day
Retained: The Time IBM's Red Hat Tried to Hijack or Take Offline Site of Critics, Failed on All Grounds (Meritless Action Intended to Harass Critics)
Replicated from adrforum.com
IBM's 'Final Solution': Censor Sites Not Controlled by IBM, Sites Where Dissent is Expressed
IBM has no culture of free speech
More Mass Layoffs Coming IBM's Way (Ones IBM Cannot Hide, Cannot Convince Enough People to Leave or Unjustifiably PIP Them When They Say No)
The company that was like a "father of modern computing" is now stingy when it comes to travel. Not a good sign.
What Will it Take for Mainstream Media to Report Silent or Secret Layoffs at IBM?
"Silent" or "secret" sometimes because the media won't cover them
Is the Future of IBM Red Hat Temporary Staff, Contractors?
They want cheap, obedient lemmings
Gemini Links 08/08/2026: Tribute to Lloyd Center, Radio Amateurism, Homeworlds
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 07, 2026
IRC logs for Friday, August 07, 2026
Microsoft Uses Slop to Find Defects and Then Uses Slop to Replace Code, What Could Go Wrong?
Botspam is the problem, it's not a constructive approach in any shape or form
analytics.usa.gov: GNU/Linux Up Some More This Week
Days ago it said 6.4%, now it's up to 6.8%
RA-pocalypse: IBM Tells Workers "Taking a Hike" is Their "Next Step" ('Voluntary' Layoffs), Now It Prepares to Sack Lots of Contractors
There definitely is something going on
Legal Attacks on Techrights Have Made Techrights More Popular and More Widely Read
The misogynists will have plenty of work to do this summer
Kai Stephens (Barkley Walsh) & British Democrats in Clacton by-election hustings
Reprinted with permission from Daniel Pocock
Daniel Pocock 'Punching' Nazis in the UK
The so-called "cult" of so-called "Debianism" was left with nothing but massive legal bills
SLAPP Censorship - Part 142 Out of 200: GemText is Not a Webpage, Gemini Protocol is Not the Web, and Capsules Are Not Websites
our intention to appeal (escalate to the Court of Appeal)
Microsoft: Our August 2026 Layoffs Are Not Layoffs Because... Reasons
That's like IBM making "spin-offs", then pretending that no layoffs are happening
Links 07/08/2026: UMG and Anthropic in Trouble Over Copyright Infringements Sold as "Training" (Slop)
Links for the day
Links 07/08/2026: "BMW Is Showing Commercials On Their Car's Dash Screens And They Want You To Think It's A Treat", Software Patents on Drones
Links for the day
What We Said About Red Hat's Fate Under IBM Turned Out to be Right on the Money (That IBM Lacks)
There are no layoffs at IBM
IRC Networks Show No Signs of Going Away, IRC Enters Its 39th Year
That IRC daemons are still actively developed and patched in summer of 2026 (over 38 years after IRC was born) says a lot about IRC's importance
Social [Control] Media Needs to Die
I am a bit shocked to recall that I wasted a lot of time on it
Some Malware is Legal Because It's Made and Distributed by Politically-Connected GAFAM
In reality, the security non-experts 'championed' (and salaried) by GAFAM are anti-security people who advocate back doors
The GNU/Linux Anniversary is Next Month, Not This Month
It'll turn 43
At Clacton by-election Hustings Event Daniel Pocock Says "Social [Control] Media Has Contributed to Some of the Anti Social Behaviour."
No doubt many problems in society are caused or at least amplified/accentuated by this horrible phenomenon
IBM Insiders Explain Why IBM is in Very Serious Trouble
Will IBM last long enough for any "quantum" deliverables to become a reality?
The Register MS Took Money From Broadcom to Publish Fake 'News' With "AI" Mentioned 35 Times
not legitimate or authentic journalism.
GNU/Linux Approaching 20% in Georgia (the Country)
Usage of GNU/Linux was near 0%, as measured by statCounter, several years ago
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 06, 2026
IRC logs for Thursday, August 06, 2026
Gemini Links 07/08/2026: Radio Amateurism, Summer Updates, and Programming "Taste"
Links for the day