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4-Patents: Greenpeace confiscates Patent files



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Greenpeace confiscates applications for Patents on Life

Munich, 28.11.2000 - At a press conference in Munich Greenpeace today presented the original internal files of 12 patent applications on living orgaisms and genes to the public. These files originate in the European Patent Office (EPO) where they are being examined and most of them were about to be granted by the EPO. These applications prove that the EPO is set to continue the breach of law by granting patents on life. Since the EPO is not subject to appropriate independent control and breach of law can therefore not be prosecuted, Greenpeace now confiscated these files.

The files contain no indication that the EPO intends to stop issuing patents on chimeras between humans and animals. No ethical or legal objections are raised in any of the cases by the EPO - this is also true for the case of a human-pig hybrid which the Australian company Stem Cell Sciences applied for and which Greenpeace made public last October. The only reason the application is currently deemed to be withdrawn is the fact that the companies did not pay the necessary fees. A similar case, that of a hybrid between cows and humans, applied for by the University of Massachussetts who had paided all necessary fees, is being pursued by the EPO - without any ethical concerns.

"Apparently there is no difference for the EPO in examining patent applications on human-animal chimeras or motor engines or screwdrivers," says Dr. Christoph Then, Greenpeace's expert on Patents on Life. "The examiners are free to decide according to their own discretion with no controll against any breach of law."

The files also contain seven applications for patents on plant varieties, seeds and even agricultural harvest. Two applications cover human genes. One patent application claims pigs, which are to produce human blood in their bodies. Most of the applications are due to be granted shortly.

"Discoveries cannot be patented by law, and yet patents on human genes are routinely granted. Patents on plant varieties and animals are prohibited by law, and yet they are granted with no hesitation whatsoever. The actions of the European Patent Office are clearly illegal. But since the politicians have so far failed to prevent the Patent Office from conducting these illegal practices, Greenpeace saw itself forced to ake this unusual meassure to confiscate the original files and present them to the public" explaines Then.

Since the Patent Office is under no independent juridiction whatsoever, no public prosecutor could start investigations against the Office's continued breach of law. Therefore Greenpeace will contact the EPO to negotiate the conditions for a possible return of the files. Greenpeace believes that urgent meassures need to be taken to prevent the granting of patenst on life in the future. In the face of these latest examples Greenpeace expects the currently conveining international Patent Conference in Munich to take the appropriate meassures.

For more information please contact:
Christoph Then - +49-171-8780-832
Thomas Schweiger - +49-171-8780-844
Internet: www.Greenpeace.org

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FACTSHEET ON CONFISCATED CASES

Greenpeace bearing witness:
Continued breach of law at European Patent Office

Greenpeace conducted another research of patent files at the European Patent Office (EPO) in Munich and found further proof of the Office continuing to grant patents on life. These finds show how the Office is in urgent need of external control through politics and independent courts.

During week 47 Greenpeace examined the original files of more than 100 patent applications. Many of these have been in the process for years and are shortly to be granted by the EPO. The last hurdles for the EPO against the granting patents on plants, animals, parts of the human body and human genes life fell in 1999 when the EPO’s Administratice Council took an illegal decision to allow such patents on life – even though the Patent Convention itself explicitly prohibits them:

The European Patent Convention (EPC) prohibits the patenting of discoveries, of plants and animals and of inventions which have to be considered ”unethical”. Therein the EPO is not bound to other national legislation and neither does it have to take into account whether the use of an ”invention” is actually allowed. Patents are granted independently from such other possible restrictions.


Patenting hybrids between humans and animals

1. In October 1999 Greenpeace puplished a patent application on the creation of a mixed-species being between humans and pigs. The EPO responded by saying that the patent application by the companies Stem cell Sciences and Biotransplant (WO 9921415) had already been denied in February for ethical reasons. However, the original files, which Geenpeace now re-examined, provide no evidence of any such communication of the EPO towards the companies. In fact the files contain no document at all dated with February 2000. But the EPO has called on the companies several times to pay due fees before the examination of the application can go ahead – last time the EPO send such a letter to the companies in September 2000. The only reason why the patent application is considered to be withdrawn is because the basic fees have not been paid.
Should the files provided to Greenpeace not be complete then this would violate the rules of the EPO.

2. A similar case is the application by the University of Massachusetts (EP 934403) which also covers a method to produce mixed-species beings. The EPO started examining the application in 1999, after a fee of DM 8460,- had been paid. The nucleus of human cells are to be implanted into the shells of cells from cows. The resulting mixed-species animals were grown in the lab for a lenghthy period (up to 400 cells). In September 2000 the University asked where the examination process currently stands. The EPO responded by saying it will need until January 2001 to complete the examination. The EPO has not indicated that the patent would not be granted for ethical reasons.


These two cases show that the statements made by EPO president Ingo Kober during a press conference on 20 November 2000 are meant seriously: the patent office does not feel bound by any ethical boundaries. It is therefore to be expected that patent applications like the one by the University of Massachusetts will actually be granted. Following the logic of Mr Kober this would actually have to be done, because the production of such creatures is not prohibited by law in all member states.

Article 53a of the European Patent Convention, which the EPO is bound to implement, clearly and un-ambiguously prohibits the patenting of ”inventions” deemed to be contrary to ”public order” or ”morality”. The article explicitly notes that this prohibition is not bound to any other national legislation, which might prohibit the ”use” of the invention. Thus the patent examiners are indeed asked to evaluate ethical implications.


Patenting human genes

The US company Human Genome Sciences (HGS), founded by the American gene-researcher Craig Venter, has two patent applications pending which are about to be granted (EP 767796 and EP 775199), out of several hundred applications on human genes HGS has filed. In these two cases the company claims gene-sequences which are to be used for the production of drugs. The applications only stipulate a number of possible uses for the gene-sequences, but in neither case a drug has actually been developed. Application EP 775199 claims the sequences based on mere speculation, to treat rheumatoid arthritis, inflammatory pathologies, ulcers, arrhythmia, ischaemia, oedema, paraquat intoxication, blood pressure, burns, infantile respiratory distress, the prevention of cancer and several more. Experts call this ”hypothetical …”: the patent owner does not yet know what the gene sequences might eventually be of use for, but all possibilities are claimed.

That these practices actually hinder research and development is shown by another case of HGS in the USA: there HGS obtained a patent on a gene only later known to be of use in the treatment of HIV/AIDS. Now the company wants to control the research into these possibilities even though HGS had no ides about these functions when the patent was filed.


Article 52 EPC says that only ”inventions” may be patented, not ”discoveries” such as genes and gene-sequences.


Patenting animals and plants

Article 53b EPC says that plant varieties and animals may not be patented. A decision by the EPO’s own Board of Appeal confirmed in 1995 that genetically modified plants (and by implication animals as well) are also not patentable. Nevertheless, since September 1999 the EPO has granted such patents on plants and animals on regular basis again.

Animals:

Application EP 655888 by DNX Corporation (USA) claims pigs which have been genetically modified so as to produce human blood. The applications was filed in 1995. In the most recent communication by the EPO, dated September 1999, there is no indication that animals could not be patented, only technicalities are criticised.

Plants:

A number of patents on plant varieties, seeds and agricultural harvest are to be granted shortly:

1. The new company Syngenta (the result of the recent merger of Novartis Seeds and Zeneca) is to obtain EP 42615 and EP 576483, both comprising plants and seeds.
EP 576483 claims ingredients and genes from the ”miracle plant” of Peru (Mirabilis jalapa), and the use of these ingredients of this plant to treat fungus. This flower is used on a daily basis in Peru as a medical plant. The Convention on Biodiversity (CBD) stipulates that the countries of origins have to grant permission prior to the use of their biological resources and financial benefits need to be shared with them. However, despite this the EPO declared on 3 November 2000 that it intends to grant the exclusive patent rights to Zeneca. The developing world criticised this new form of colonialisation as ”Biopiracy”.

2. The company Kemira Agro Holding (NL) is to obtain patent EP 632835, claiming tobacco, rice, wheat, barley, maize, tomato, cucumber, soya, sweet potato, grapes, rapeseed, sugar beet, cotton, tea, sunflower, strawberry, rose, chrysantenum, sweet pepper or potato, which are genetitcally modified with amongst others rat-poison.

3. Monsanto, too, is to be rewarded with illegal patents: EP 602193 and EP 430511 cover plants and seeds and the EPO intends to grant these in the near future. The claims of EP 4430511 cover herbicide-resistant soy and plant varieties as well – clearly prohibited by Art.53b of the EPC.
Another patent application EP 409628 by Calgene (bought by Monsanto) includes fruits such as tomatos, grapes, blueberry, cranberry, currant, eggplant, cherry, plum, apricot, peach, nectarine, avocado, rasberry, blackberry, oranges and citrus, peas, green beans and soybeans and more.

4. Aventis (a merger between Hoechst and Rhone-Poulenc) filed an application on plants and seeds as well (EP 412911) and is about to get the go-ahead from the EPO: the fertility of pants and their ability to grow seeds is to be controlled through the use of certain genes. Such methods are known as ”terminator-technology” since they can be used to prevent the farmer from sowing his own harvest: the seeds are sterile.


The position of Greenpeace

Greenpeace fundamentally opposes patents on life, such as patents on genes, plants, animals, humans and parts of the human body. Patents on life equate living nature with industrial products which degrades the dignity of life.

A patent grants its owner the exclusive control over his/her invention. Therefore, patents on life fundamentally change our perception and understanding of living nature and our relationship towards it. Living organisms , which have been ”created” by industry and which can be patented, cannot have a value of their own, since they are only an invention of human beings. Thus they can be exploited without any ethical concerns.


Greenpeace demands:

§ Genes, plants, animals, humans and parts of the human body cannot be patented




§ The member governments of the European Patent Convention (EPC) must exercise their political control and stop the EPO from granting further illegal patents on life




§ The EU-Biopatenting directive 98/44/EC must not be transposed into national law




§ The EU must initiate new patenting legislation, clearly prohibiting patents on life