In 2007, 
Last week has been a noteworthy one in Germany for biotechnological
patents for agricultural applications and has received wide interest,
nationally as well as internationally. Hundreds
of farmers, environmentalists and others gathered outside of Munich´s
Erhardtstrasse 27, the principal seat of the European Patent Office
(EPO) last Wednesday to protest against the so-called „Pig patent“ EP 1651777 B1
(above; 30 pigs "accompanied" the protests). The protesters used this
opportunity to file a notice of opposition backed by more than 5000
individuals and more than 50 associations against the patent at the EPO
which was granted on the 16th of July 2008 to Newsham Choice Genetics.
The
protesters criticized the practice of patenting biological processes
since “they have nothing to do with inventions”, as Hubert Weiger, the
head of the “Bund Naturschutz Bayern”, an environmental group in
Bavaria, stated. The farmers were specifically concerned that the
continuing patenting of life stock would seriously aggravate their work
by being threatened to pay excessive royalty fees to patentees which
usually are multinational corporations in this area.
Initially
the patent application contained 30 claims, from which some were
related to animals as such, DNA sequences and the test kit. However the
examination of the EPO has limited the claims to the screening method,
whereas the claims to animals (pigs), the gene sequences and the test
kit were rejected. The patent now solely relates to a “breeding method
whereby a genetic analysis is carried out to screen for a variation
(polymorphism) occurring naturally in some pigs, with a view to
identifying those animals suitable for improving pork production and to
selection appropriate breeding pairs” (see the press release of the EPO).
The
main motto of the protest however was: “Stoppt das Patent auf die arme
Sau” which stands for “No patents on the poor pig” and hereby –
deliberately or negligently - wishes to render the patent as granted to
a patent on pigs as such and hence being misleading. This may be
excused due to the fact that this slogan is in its German meaning quite
catchy and therefore serves the purpose of the protests. The press
release of the EPO however clearly highlights that no patent on animals
or gene sequences has been granted. The claims as they were initially
filed may have lead to the realisation of such fears as expressed by
the protesters but the examiners at the EPO did their job well in
applying the rules of the European Patent Convention (EPC).
However,
the protests and the hereby created public interest actually do
highlight a major deficiency in the IP system and its public
perception. It has not been achieved to thoroughly inform society as a
whole what IP, and specifically patents is all about, how it operates
and where its limitations are. IP has lately had a bad press whereas
its benefits are often overseen. This needs to be addressed, bearing in
mind its possible negative effects as well as to further explore how
these may be overcome.
The
press release by the EPO has highlighted in its last paragraph another
rather more legal deficiency, which remains a hot topic and warrants
determined action by policy makers. The EPO ceases to have jurisdiction
totally 9 months after grant and the patent then falls within the
jurisdiction of the nominated Member States. Post grant “quality
control” by litigation on what should be patented is therefore
seriously being hampered. In case of the “pig patent” (18 of the 35
Member States of the European Patent Organisation have been nominated
for patent protection) this could mean multiple - and therefore
expensive - litigation in all nominated jurisdictions.
Earlier
this week the German Federal Minister of Agriculture, Ilse Aigner, has
proclaimed a ban on the use of the genetically modified maize strain
MON 810, which has been patented by Monsanto. The Minister was not
hesitant to state that the decision was not a political one but was
solely based on the facts of the case. Therefore, the decision should
not be regarded as a fundamental verdict on the use of genetically
modified crops in Germany, as Ms. Aigner affirmed. However, the
political pressure is constantly growing. The Minister of Environment
of the Federal State of Bavaria, Marcus Söder, has expressed the wish
to make Germany a „genecrop-free zone“ and has reaffirmed this goal in
a speech at Wednesdays´ protests against the “pig patent”. He joins the
Ministry of Environment of the Federal State of Hessen, which is about
to launch a legislative initiative in the „Bundesrat“, the 2nd chamber
of parliament in Germany which consists of representatives from the 16
federal governments, to ban the patenting of newly bred animals and
plants. By doing this, the Ministry wishes to call upon the German
Federal Government to lobby the European Council and the European
Commission to tighten Directive 98/44/EC on the legal protection of
biotechnological inventions.
It now remains to be seen what impact the incidents of last week in Germany will have on the patenting of biotechnology. Mon 810 is currently banned in 6 countries of the European Union, including Germany. And it appears that the European Commission is willing to reconsider certain issues on patenting biotechnology.
