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Change patent-law



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MAIL-OUT  69    'No control on life!'                          (Auguste 1999)
Dear friends - here an english translation (and first interpretation) re
change of European patent-law.
Best regards Florianne

Animals and plants patentable - radical change of the law by EPO

On September 1st ,1999, transgenic animals and plants, and also human cells
and genes, shall be patentable in Europe - such the decision the
Administrative Council of the European Patent Office (EPO) took on June
16th. With this decision the Administrative Council anticipated a change of
the European Patent Convention (EPC, equals European patent-law) of
uttermost importance, in all secrecy and bypassing democratic authorities.
Legal trick: By making a revision of the Implementing Regulations to the
European Patent Convention, they bypassed a revision of the EPC itself
(which only a Diplomatic Conference of all EPC-members can decide).

Background:
According to the European Patent Convention the most important requirement
for granting a patent is that it's an "invention" (and not just a
"discovery"), which can be fully described and which can be rebuilt by a
skilled person. But living beings cannot be "invented", cannot be exactly
described nor rebuilt - this is the fundamental and beautifull difference
between a living being and dead material. The EPC also contains clear
exception-rules from patentability: Art 53 b for example states, that
"plant- and animal-varieties" cannot be patented.

1992 the EPO granted the first patent on a living animal - the famous
oncomouse. Organised by "No patents on life!" over 200 NGOs from all over
Europe opposed this patent. Beside the main arguments of ethical and social
concerns we opposed to the fact that the patent contained all transgenic
"non-human mammals" (be it cancer-dogs or cancer-giraffes), in order to
circumvent the patent ban on animal-species....The 3-days lasting
proceedings in 1995, which ended with an eclat, also clearly demonstrated
the fact that it is nearly impossible - with all legal tricks - to redefine
an animal into a patentable "invention". Up to today there is no decision
on this case.

1997  the Technical Board of the EPO gave a negative oppinion on a
plant-patent from Novartis because of similar reasons: The granting of such
broad patents should be considered as if you could conclude from a law for
a ban on bigamy that poligamy is allowed.... A final decision of the
Enlarged Board of the EPO (the highest authority) on this crucial issue is
expected for the beginning of 2000.

In the mean-time the Administrative Council of the EPO launched its coup de
main and redefined the EPC with a revision of the Implementing Regulations
of the EPC. 2 examples:
*       "Biotechnological inventions shall also be patentable if they
concern: (b) plants and animals if the technical feasability of the
invention is not confined to a particular plant or animal variety".
This means: Transgenic plants and animals shall patentable, without limits.
Already today every patent-proposal is formulated in such a way as to
include many varieties. The patent on the transgenic soja from Monsanto
e.g. includes also transgenic "wheat, rice, cotton, sugarbeet, rapeseed,
flax, sunflower, potatoe, tobacco, alfalfa, poplar, pinapple, apple and
grape" (claim 28, patent No EP 546 090).

*       "An element isolated from the human body (...), including the
sequence or partial sequence of a gene, may constitute a patentable
invention, even if the structure of that element is identical to that of a
natural element". This means: Just the isolation of a human gene gives its
"inventor" exclusive monopoly-controll and rights over its patented
"invention".

A change of the EPC-law of this dimmension would have required at least a
revision of the EPC itself (and not just the implementing regulations).
Such a change can only be done by a Diplomatic Conference of all member
States in an unanimous vote. This would have meant a democratic - and
public- debate and decision-taking.

Instead the Adminitsrative Council is redefining the EPC by a revision of
the implementing regulations, in a closed circle and screened off the
public, arguing that it's merely a question of implementing existing
definitions, with no major changes involved. If this circumvention of
democratic authorities is permissable has yet to be seen.

The Administrative Council rests its arguments on the controversial
EU-Patent-Directive, which was adopted by the European Parliament in 1998
(see mail-out 59). But this EU-Patent-Directive is being opposed at the
European Court of Justice by 3 states: by the governements of The
Netherlands, Italy and Norway (see mail-outs 62 and 67). Their main
arguments: The EU-Patent-Directive contradicts the EPC, as well as the
Convention of Biodiversity. It also contradicts the principles of human
dignity by permitting patents on "isolated" human elements. The decision of
the European High Court is yet to come.


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