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Mail Out 80 No Control On Life!

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Mail-out 80 (September/October 2000)

Dear friends

The European Patent Office (EPO) is holding an International Diplomatic 
Conference in Munich on next November 20 to 29 for the Revision of the 
European Patent Convention (EPC). It seems to be a trial to weaken the law -
 highest attention is needed. The draft of the Revision may be found on 
EPOs website: Among others the Italian Greens are 
trying to make this event as internationally visible as possible - they go 
to Munich, plan some actions and are asking everybody to join them. They 
did a good background on the EPO which I will add here. Thank you, 
Fabrizia, for all this great work!

Brief Background history of the EPO (European Patent Office)

1973: the "European Patent Convention" was signed by 10 European States 
(the 15 present members of the Union, plus another four), with the aim of 
harmonizing patent laws in these countries. The Convention consequently 
gave rise to the Munich-based European Patent Office (EPO) which was 
established to enforce the Convention and issue European patents. The 
Convention (EPC) prohibits the patentability of living matter (both plant 
and animal)

May 12th 1998: The European Parliament, after a long debate lasting ten 
years, approved the European directive "for the legal safeguard of 
biotechnological inventions" (98/44). The vote, which was cast after what 
Willy de Clercq - president of the Legal Committee that presented the 
directive - defined as the "greatest lobbying effort in the history of the 
European Parliament", was expressed in favour of the directive by the very 
same representatives that had rejected it with a majority vote in 1995. The 
directive was aimed at adjusting European laws to the laws that had been in 
force for a few years in the United States and in Japan and provided for 
the possibility of patenting the products of biotechnological "inventions", 
that is to say genetically modified plants and animals as well as parts 
thereof. It also allowed for the patenting of parts of the human body, 
albeit unmodified.

1998-1999: Directive 98/44 was challenged by the Netherlands and by Italy 
(that, among the other points raised against its legitimacy, shed light on 
its being in contrast with the European Patent Convention currently in 
force) and also by Norway (entitled to do so in view of its membership to 
the EEA (European Economical Agreement) although it is not a member of the 
European Union.

1999: The European Patent Office (EPO), after being stopped from issuing 
patents on living matter by the petitions filed by associations (although 
it tried to continue granting them despite their being in contrast with the 
Convention), was now faced with 15,000 pending applications for 
"biotechnological patents".

June 6th, 1999: in order to overcome obstacles and avoid long (and risky) 
delays, the EPO (which is financed by the fees paid for every patent) put a 
"brilliant" idea into practice: its Board of Directors, largely exceeding 
the powers granted to them, introduced the most relevant articles of 
Directive 98/44 in the "Implementation Regulation" of the Convention. By so 
doing, the EPO produced a monster: a Regulation for the Implementation of 
the Convention that authorizes the issue of patents on living matter 
thereby contradicting the Convention itself (as it prohibits patents on 
living matter). This result was achieved with 14 votes in favour (including 
that of Italy) and 5 abstentions.

Sept. 1st, 1999: following the plan announced on the 16th of June 1999, the 
EPO starts to screen the "biotechnological" patents still pending: this 
will lead to the issue of patents on genetically modified plants and 
animals and even the granting of a patent for the cloning of human embryos 
while an application for a patent for the creation of a man-pig embryo is 
first filed and subsequently withdrawn thanks to the intervention of 

1999-2000: after a substantial delay (everything occurred under the usual 
cover of secrecy), Europe was informed of the misdeed. Nonetheless, as the 
EPO does not fall under the jurisdiction of the European Court of Justice, 
it is not possible to take action against it even if all the experts in 
International Law consulted decreed that its action was unlawful on the 
grounds that the Board of Directors was not empowered to overturn the sense 
of the Convention by introducing such a significant amendment in the 
Regulation. The convention can actually only be modified with the vote of 
all the governments of the signatory States within the framework of a 
Diplomatic Conference. The only member country that took action, by at 
least withdrawing the vote expressed by its representatives sitting on the 
Board of Directors, is Germany upon the initiative of the Minister of 

July 30th 2000: the term for the reception of Directive 98/44 expired but 
only three members out of 15 complied (Great Britain, Denmark and Finland) 
while several member States expressed their dissent. There was an 
increasingly felt and growing will, not only in Europe but throughout the 
world, to oppose the issue of patents on living matter. On the 18th of 
October 2000, the German Government announced its intention to file a 
formal petition to the EU to review the Directive, thus joining efforts 
with thousands of European citizens and numerous European Institutions. 
Special concern was expressed on the patenting of parts of the human body.

September 2000: the EPO disclosed the text of the European Patent 
Convention Review. The calling of a Diplomatic Conference (among all the 
signatory States of the Convention) aimed at discussing and voting the 
draft had already been announced on the 24th of February 2000. By calling 
this Conference, the EPO obviously intended to ratify the amendments 
already made on the 16th of June 1999. But the text disclosed the fact that 
the EPO's aims are much more ambitious than could be imagined as it 
specifically aims at broadening the powers of its Board of Directors with 
the introduction of a paragraph (art. 33/1b) whereby the Board of Directors 
is to be empowered to amend the provisions made in the Convention (as it 
already did, without having the power to do so, on June 16th 1999) in order 
to conform them not only with Community legislations but also with 
international treaties. Special reference is in fact made to an alignment 
with the TRIPS agreement of the WTO and to the need to avoid the delays 
produced by national reception procedures "whose duration and success can 
never be certain" as well as to the need to avoid Review Conferences "with 
a gain of time in the order of several years". The EPO stated that these 
amendments would enable it to "respond with flexibility to future needs, 
especially in view of the forthcoming expansion to 28 additional member 
States". It should also be noted that a European Patent Regulation is 
currently being debated according to which European patents would be issued 
by the same European Patent Office of Munich and the European Union would 
become a new member of the EPO.

Infos: (Fabrizia Pratesi, Rome) (Ruth Tippe, Munich)


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| European NGO Network on Genetic Engineering |
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