tag:blogger.com,1999:blog-5574479.post9109797254380933160..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Dutch court rules that patents based on Ethiopian Teff flour lack inventiveness - Ancientgrain BV and Bakels Senior NVVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5574479.post-28942567478750925662019-02-26T17:33:49.509+00:002019-02-26T17:33:49.509+00:00Dear Mr Van Wezenbeek,
That some propaganda has b...Dear Mr Van Wezenbeek,<br /><br />That some propaganda has been made about this case by people not having a clue about patents, and that journalists sometimes oversimplify matters to make them more palatable is not a surprise. <br /><br />But this does not warrant your reply and its condemning tone. It is clear that traditional knowledge was not the source of the lack of inventive step. It was a publication by the applicants which was fatal. The problem with traditional knowledge is that is often not written down with all the certainty needed in the patent business.<br /><br />On the other merely browsing through general literature about flour and baking, one get the feeling that the flour claimed was the mere result of trial and error. It appears to be a well-known fact that flour has better qualities when the grain is stored before milling. This is valid for lots of flours from different grains, and it cannot be surprising that it applied to teff grains. <br /><br />But there is sometimes some justice. By wanting to sell stuff before having filed an application on it, is nothing new. It happens time and time. I wonder if they told their representative at the time that important information was disseminated beforehand<br />Not worth a big polemicnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38361989228124992032019-02-26T13:14:18.832+00:002019-02-26T13:14:18.832+00:00This report is one in a series of reports that hav...This report is one in a series of reports that have reached the Dutch newspapers and even the 8 o'clock news on the patent on teff.<br />The case that is reported here was indeed an infringement case between the Dutch patent holder and one of its competitors. However, in spite of the suggestion that is made in this report, the Ethiopian government has not played any role and/or has not had any influence on the outcome of this case.<br /><br />Indeed the patent has been found invalid, because it was denied an inventive step. However, in spite of the suggestion in the report that this was on basis of lack of inventivity over the traditional knowledge of Ethiopia on the culturing and use of the teff grain, it was found to lack inventive step over a newsletter that was published by the patentees themselves prior to the priority date of the patent(s) in suit. <br /><br />In the comment to the report, the author mentions that the patent would prevent Ethiopia to export teff flour to Europe. This is certainly not (completely) true. Initially the patent covered a subset of teff flour with specific characteristics (which would make it suitable for baking ‘modern’ baking products, such as bread), but during the court case that patent was voluntarily limited to a method for baking these baking products using this special selection of teff flour. It is thus incorrect to state that the patent would prevent people (in Europe) to make injera – the traditional Ethiopian bread. As a matter of fact, the production of injera was literally excluded from patent protection in the claims of the patent. <br />Accordingly, there was no limitation to the Ethopians on exporting teff for the uses for which it was traditionally used. <br /><br />Also the ‘claims’ from the Ethiopian government that they are fighting the validity of the patent before the Court of Arbitration in Paris are questionable. As a matter of fact, I am the patent attorney that has drafted and prosecuted the patent and the patentee, nor I as his legal representative, have never been informed about any action against the Dutch patent or any of its European equivalent patents other than in the presently reported court case (where the Ethiopian government was not involved). <br /><br />Regarding the access and benefit of ‘traditional knowledge’ it should be stated that the patentees did negotiate an agreement with the Ethiopian government already in 2005. Please remember that such an action at that time was far from obligatory, since, although the Biodiversity Convention was already concluded at that time, there was not yet a thing like the Nagoya protocol, nor had Ethiopia any legislation regarding access to genetic resources. The suggestion that Ethiopia was not able to claim its benefits because of the bankruptcy of the company that originally closed the agreement also is not trustworthy, because there have been no benefits to share at all thus far. Maybe the Ethiopian government wants to share the losses due to the court decision with the patentees?<br /><br />The suggestion from the author to have access and benefit-sharing agreements be notified to e.g. WIPO seems a nice suggestion, but is nowadays in principle already implemented through the Nagoya protocol, that already recognizes that a party that wants access to genetic resources should establish prior informed consent and should conclude an agreement on mutually accepted terms. Countries that have the Nagoya protocol implemented in their legislation then can provide the applicant with an internationally-recognized certificate. <br /><br />All in all, I find it a pity that this case is misused to make unjustified propaganda. Especially, this is a pity, when not only local newspapers (that do not understand patents) make room for this propaganda, but when a respected and top IP-blog publishes a report like the current one. <br />Bart van Wezenbeeknoreply@blogger.com