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

Is Ubuntu Compromised? Push Away From GNU and GPL Led by Army Officers.
Perhaps people should ask Canonical what the thinking behind it was...
Phoronix Seems to be Trying to Kill Discussion About "Asahi Lina" and the Anti-Torvalds Brigade
Our informed guess is that by reporting this news Phoronix got caught up in flamewars that divide and fracture the community
Facts on the Case Already Disclosed by US Authorities
NGOs in the UK (several keep abreast of this, judging every recent move) are truly unimpressed
The Times Group (and The Times of India) Basically Died Again
This time a death by LLM slop/plagiarism
 
Gemini Links 20/03/2025: Wanting the Future Back and "Society That Lost Focus"
Links for the day
Fake Articles About GNOME
betanews again
Richard Stallman's Personal Site Says He's Looking for More Opportunities to Speak in Europe
He does not charge people for the talk
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 19, 2025
IRC logs for Wednesday, March 19, 2025
Debian Pregnancy Cluster, when I stopped using IRC
Reprinted with permission from Daniel Pocock
Mass Layoffs at IBM Confirmed
Thousands believed to have been laid off
Slopwatch: linuxsecurity.com, cybersecuritynews.com, gbhackers.com, and techmonitor.ai (Fake 'Articles' About "Linux")
Almost all of them (75%) show up in Google News
Gemini Links 19/03/2025: go-gopherproxy and 'Small Web' as Self-expression
Links for the day
Links 19/03/2025: Attention's Cost and Media Still Besieged by Dictatorships
Links for the day
Claiming to Love What You Reject or Seek to Totally Own, Control
The Russia analogy is political
LinuxTechLab Became Just LLM Slop and SPAM
Another dead (former "Linux") site
The Rust Song
It's about control
The Death of The Economic Times (India Times): LLM Slop Presented as 'Articles', Containing Errors and Revisionism
They'd be better off shutting down operations with some dignity than resort to bots giving the false impression (illusion) of authorship
In Belgium, Android is Finally Measured as Bigger Than Windows
In Belgium, the lobbying capital of Microsoft, it wasn't easy to get there
"Rust People" Are a Threat to BSD Too (the Licence Isn't the Main Issue, Nor is the Proprietary Microsoft Hosting)
BSDs aren't written in Rust, so BSD developers should buckle up
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 18, 2025
IRC logs for Tuesday, March 18, 2025
Sami Tikkanen Explains Rust Language and Its Goals
"Sompi" (the nickname of Sami Tikkanen) has weighed in
Links 19/03/2025: Gardening Season and the Web Without an Audience
Links for the day
Mauritius: Windows at All-Time Low, Down From 96% to 17%
Put in simple terms, people choose to connect from the "phone" (running Linux), not some laptop running Windows
Many IBM Layoffs Reported Today in Europe and North America
there's definitely a lot going on today
The GNU Manifesto is 40. Here's the Original Print (1985).
Some unpleasant people want to replace GNU with Microsoft-controlled (GitHub) Rust copycats
Unixmen Seems to Have Died After Turning Into a Slopfarm and Spamfarm, Is LinuxSecurity.com Next?
Better to not publish anything at all than to resort to fake garbage.
What Happened to the Open Source Initiative (OSI) Elections: More People Begin to Speak Out
Kuhn set another bonfire ablaze
Links 18/03/2025: ‘Meritless’ Defamation Suit Thrown Out, InterDigital Software Patents Headed for the Bin Too
Links for the day
These Strange Web Statistics From The Bahamas Show Windows Falling From 93% to Less Than 5%
There are about half a million there
Gemini Links 18/03/2025: Weather and Resisting "MAGA"
Links for the day
Links 18/03/2025: New Apple Blunders and Windows Disliked by Users
Links for the day
Once Again 'Losing Track' of Who the Clients Are, The Serial Harasser and Strangler from Microsoft
Timing is everything
2025 Rumours of IBM Layoffs in Marketing Likely True, Online Powwow Drops More Clues
Expect over 10,000 layoffs this year (at IBM alone)
Android (With Linux) Rises to Record Highs in Hong Kong and in Macao
Looking quite bad for Microsoft
Distractions. Distractions Everywhere.
distracting from the real solution
EPO Concerns About the Education and Childcare Allowance Reform (ECAR) and School Liaison Officer (SLO)
The public deserves to know as it impacts thousands of families
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 17, 2025
IRC logs for Monday, March 17, 2025