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Tuesday, 6 May 2008

Rights for plants?; Bean patent scuppered

Fellow UK patent attorney Tim Roberts has kindly pointed the IPKat towards an unusual report recently issued by the Swiss Federal Ethics Committee on Non-Human Biotechnology, titled "The dignity of living beings with regard to plants". The report discusses whether provisions should be made for the ethical treatment of plants, perhaps in a similar way to that of humans and animals. Tim also points out that there is a 'spirited' discussion of the issue on the Nature website, where the story has been covered.

While not directly related to IP, opinions arising out of this kind of debate could have significant effects on moral and ethical exceptions to patentability (for example the exceptions under Article 53 EPC). The IPKat would not like to prejudice anyone's views on this apparently sensitive subject, leaving his readers to judge for themselves. He would, however, like to point out that this is, as far as he can work out, not a joke.

On more down-to-earth issues, the IPKat reads that the apparently notorious 'Enola bean' patent (US 5894079) has been finally rejected by the USPTO Board of Appeal, after a request for re-examination was made several years ago by pressure group ETC (which reports the story here). More information on the long-running story (which may not yet have reached its conclusion) is available here.

5 comments:

Anonymous said...

Not really related to the Enola Bean patent, but the ETC report on the case talks about the ridiculous length of time it took to get a final rejection and draws parallels with Monstanto's EP patent on soya beans (revoked last year) where opposition and appeal took 13 years.

Now, I'll happily agree that 13 years is way too long, but it probably wouldn't have taken that long if Greenpeace (or the "action group" it was representing) hadn't messed around by inventing straw men. About half of the board's decision was devoted to the issue of admissability of the appeal/opposition as a consequence of this pointless posturing.

Lesson to be learned: if you want to oppose a patent, oppose it. Don't play silly buggers! You'll only drag out the proceedings and risk losing the right to present your case at all.

Gerontius

Chong-Yee said...

To this non-philosopher, a key part of ethics is the protection of living things who are unable to defend themselves (e.g., minors, animals, etc).

If you extend this to a broader view of "protection", perhaps it's not so strange that there might be a wish to protect plants as well. Should one stand idly by while a plant species is made extinct through habitat destruction or over-collecting?

The economic argument for protecting biodiversity is based on the value of plants as sources of drug candidates; the non-economic argument surely must be an ethical one, i.e., that it is right and proper to preserve something unique that has taken years to evolve.

twr57 said...

Gerontius's comment might have been perceptive, had it borne any relation to the facts of the case.

There were half a dozen oppositions to the Monsanto patent. The parties who attended the Appeal were ETC and Syngenta. A third party, 'Stephan Geene' was also represented, but the Board held (after brief discussion) that his status having been credibly challenged, he had not effectively rebutted the accusation of non-existence. This certainly delayed the final decision (maybe by 20 minutes or so), and (perhaps longer) the issue of the grounds, which dealt mainly with this point. The other matters were felt to be straightforward.

The thirteen years that the proceedings took were in no way due to the tactics of the opponent ETC (originally RAFI). Five years were spent waiting for an Enlarged Board decision on the patentability of plants - this still leaves eight years for a process that should have taken at most three.

Anonymous said...

Thanks for filling in some more of the details behind the delay in that case.

My point was not to blame ETC for the delay, but to criticise their attempt at point-scoring against the EPO without setting out all the facts. Yes, the case took far too long, but it was an unusually complex case and wasn't helped by the actions of one of the opponents.

Even if the representation issue didn't take long at the hearing, I can imagine it causing a delay in the proceedings as a whole as the board attempted to understand the issues before calling everyone to oral proceedings. I'm sure we're both familiar with that "I'll just put this difficult case to one side until tomorrow" feeling.

Gerontius

twr57 said...

I'm grateful to Gerontius for his courteous partial withdrawal, but unfortunately too curmudgeonly to leave it at that (after 13 years it's hard to let a case go!).

I agree wholeheartedly with his general contention that NGOs who object to a patent should file a professional opposition (rather than playing games, such as bricking up EPO doorways). This is what my clients - ETC - did. Geene, who was supported by Greenpeace, may be open to criticism on this score. If they'd had a professional advisor throughout, evidence that Geene existed would have been filed - if he existed. If he didn't exist, the advisor could have ensured that the opposition was filed in the first place by someone who did. So far so good.

What I disagree about is whether this had any effect on the progress of this particular case. Gerontius 'can imagine' how the additional complication of the representation issue might cause the case to be put aside. I quite accept that he or I might procrastinate in such circumstances, though I'm more hesitant to attribute such behaviour to Appeal Boards. What I don't credit is that this particular situation is one that would have caused the Board to think twice about setting a date. There were many meaty issues in the case - this was not one. It didn't emerge until the Appeal (according to the Minutes, Geene appeared in person at the Opposition hearing). There was no reason for the Board to think it would cause any special difficulty (they asked Geene to file comments, and unexpectedly he didn't - giving some support to the idea that he might not exist). It is dealt with at length in the Decision, perhaps at least partly because all but one of the other points became moot. There was no delay because of this.

I say that ETC's criticism of the EPO's delay (made in passing while commenting on the Enola bean case) is perfectly fair. Gerontius's contention that the conduct of any of the opponents caused significant delay is simply wrong (I construe 'wasn't helped' to mean 'materially hindered', rather than in its literal sense).

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