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

The Register MS is Profiting From Pyramid Schemes Run by Americans
We cannot help but feel disgusted by what this publisher became
IBM: Hiring, Then Disposing of, Unpaid or Low-Paid European Staff to Spread or Play Up Buzzwords and Hype
Like Google With "Summer of Code", this seems like a low-cost marketing stunt more than anything substantial
The Europe Conversation: The EPO Has Cocaine at the High-Level Management and Isn't Denying It
Now we plan to ensure the matter is properly documented in European press
Corporate Media Helps IBM Relay Vapourware (Misinformation/Fake News)
They compensate with words for a lack of compelling products
Web Searches Far Too Polluted, Gamed by LLM Slop and "Plagiarised Information Synthesis Systems" (PISS)
old articles are already getting difficult to find in mainstream search engines, even if they are still online
"AI" is a Lie. It Always Was. What They Call "AI" Is Not.
This MSM does no favours to the economy
 
Richard Stallman Talk Tomorrow in Ethereum Cypherpunk Congress 2
It's not clear if a livestream of some kind will exist
Many "Last Days" at IBM on Allegedly the "Last Day" for IBM to RA People This Quarter
"Last day" is "social media code" for "got laid off", more so at IBM because they compel people to act like it's a happy departure with gratitude, photos and so on
Slopwatch: Almost a Majority of Google News is Now Slopfarms (Fake Sites, Fake Articles)
Google News is noise
Gemini Links 14/11/2025: Boredom, "Twenty Percent Cooler", and Moving From Windows to Artix
Links for the day
Links 14/11/2025: YouTube's Trap for Publishers, Lack of Accountability a Growing Legal Matter/Concern
Links for the day
Many Times in the Past We Said That Microsoft Lunduke Was Becoming a Spokesperson/Voice for - and Occasionally Weaponising - 4Chan. He's Proving Us Right This Week.
Stay away
Casual Reminder That We Also Publish GNU/Linux Stories and News Coverage in Tux Machines
Without trust in our robustness (including fearlessness, not just success in protecting stories and sources) we'd not have come this far, nor would I devote my life to it
Links 14/11/2025: Goddard Space Center Abused by the White House, Jeffrey Epstein Scandal Expands (Cheetos Need Distraction)
Links for the day
Hacking on Recipes
Maybe, in due course perhaps, we can also release some of our own cooking recipes or "forks"
Privacy-respecting Metasearch Engine SearX/SearXNG Still Jailed by Microsoft
The official site and code still sadly controlled by Microsoft
Our First Week of Our Twentieth Year
My wife and I have had a very productive week here and in Tux Machines
Links 14/11/2025: Sleep Research, France to Suspend Pension 'Reform' Law, and Linux Foundation's Latest Openwashing
Links for the day
Gemini Links 14/11/2025: KDE vs XFCE and Leaving the Web
Links for the day
Google Admits It Lost Control of Slop (While Google Itself is Selling Slop, Currently Under the Name "Gemini" Instead of "Bard")
Slop is nothing to be celebrated
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 13, 2025
IRC logs for Thursday, November 13, 2025
Mozilla Handed Over Control Over Firefox to Microsoft, Now Firefox is Preloaded With Microsoft Spyware and It's Proprietary
Who would still want to download Firefox?
Slopwatch: LinuxSecurity, Brian Fagioli, and WebProNews
becoming a slopfarm is a site's suicide
"Sponsored Posts" in The Register MS
That's The Register MS in 2025
IBM RAs in India (Apparently)
IBM is a bad place to work
Another Richard Stallman Talk in Two Days
His talk will be a remote talk, as he won't be travelling to Argentina
Links 13/11/2025: "Fight for Control Over In-Car Technology" and "Climate Crisis is a Health Crisis"
Links for the day
Gemini Links 13/11/2025: Disbelief in the Moon Landings and Doom That Came to Scrolling
Links for the day
A Month After "End of 10" analytics.usa.gov Says More People Use Vista 7 Than Use Vista 11
Does it get any more pathetic than this?
Links 13/11/2025: Ghost (E-mails) of Jeffrey Epstein Chases Cheeto, Uproar Over SLAPP Threats Against British Broadcasters
Links for the day
IBM Layoffs Seem to Have Reached Europe
Is it Europe's turn to fall on its sword?
A Lot of What's Left of the Online "Media" is Paid-for SPAM
How much of online media can people still trust?
Synopsys, Which Controls a Microsoft FUD Operation (Black Duck), to Lay Off Hundreds of Workers
Microsoft had plenty of layoffs this year, well over 30,000 in total, including at least two waves of layoffs last month
The EPO Has Spent Years Attacking European Media, Led by a Cocaine Addict (the EPO's Spokesperson)
The EPO silences critics
Prominent German Media Dares Not Mention Cocaine at the European Patent Office, Germany's "Cash Cow" (Seller of Monopolies for the Whole of Europe)
It seems like a case of the corrupt hiring the corrupt to bully those who speak about the corruption
Techrights Protects Against Collective Amnesia (Forgetting History the Rich and Powerful Want Us to Forget or be Misled About)
Keeping full access to our material with a good search facility is a priority for us
Mainstream Media Compliments Techrights on Its Work
Google isn't "the Web" and this site isn't "the Web" either
Microsoft-Sponsored FSFE is Exploiting the Success of Jean-Baptiste Kempf to Market Itself and Its GAFAM-Funded Messaging (While Pretending to be "FSF" Europe)
No doubt Jean-Baptiste Kempf accomplished a lot (not limited to VLC) in not so many years
A Week of Techrights Search
Tomorrow it'll be one week since we turned 19
LLMs Will Never Work, You Need to Type What You Know
Voice recognition is too imprecise to be practical or really save any time if you can type fast
Your Computers Are Work and Entertainment Tools, Not a Fashion Statement
If you're into fashion, find another job or keep cruft out of the workplace
The Federation? Almost 90% of Its Users Have Quit Participating.
If one counts offline (historic) instances, it's even worse than this
Under IBM, Red Hat Isn't a Linux Company, It's Sold to Clients as "AI Company"
IBM is sacrificing Red Hat for Wall Street (share price)
IBM Will Carry on or Carry Out Mass Layoffs Until Tomorrow, Based on Unverified Claim (Silent Layoffs Under Secrecy Clauses/Deals)
Red Hat (as a "company" with a Web site) will probably never announce layoffs again
It Looks Like Microsoft is Really Abandoning XBox (the Brand "XBox" Means Just an Online "Games Store" or Streaming)
Published last night
The Register MS Has Just Taken Money to Promote Microsoft Windows Under the Guise of "HEY HI" (AI)
Just 'consume' the ads disguised as "journalism" at The Register MS
Apple is Waning, Shows Data (Web Stats)
Is Apple doing as well as Apple-sponsored (paid to run Apple ads) claims?
IBM is a Buzzwords Vendor
Does anyone even pay attention to anything IBM promises these days?
It's Patently False That Apple Has Avoided Layoffs
be sceptical of people who say Apple hasn't got layoffs
IRC.com is Vendor-Locked (Freenode)
Web client
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, November 12, 2025
IRC logs for Wednesday, November 12, 2025
Slopwatch: Spam, Scams, and Plagiarised Information Synthesis Systems (LLMs)
The way things are going, LinuxSecurity might become entirely inactive
IBM "Trying to Memory Hole the RA With Positive News."
it's clear they have no real plan, just vapourware
Gemini Links 13/11/2025: Pictures From the Aurora and Cryptography of the Internet
Links for the day