European Parliament Voting on a Joint Motion for a Resolution on Patents for Biotechnological Inventions.
The European Parliament has voted on a Joint Motion for a Resolution on patents for biotechnological inventions. Primarily, the Parliament refers to European Patent EP695351 - "ISOLATION, SELECTION AND PROPAGATION OF ANIMAL TRANSGENIC STEM CELLS" as well as to European Patent EP1257168 - "METHOD OF CRYOPRESERVING SELECTED SPERM CELLS".
A few quotes from the motion:
"[...]
F. whereas the European Patent Office granted a patent on 2 February 2005 (EP1257168) that includes a method of selection of human germ cells and of the germ cells themselves,
G. whereas opposition has been made to this decision, so that the legal situation is still unclear,
H. whereas the European Patent Office has also granted European Patents EP1121015 and EP1196153, which also cover human germ cells, and EP1121015 covering frozen human embryos,
I. whereas the European Patent Office accepted the opposition to patent EP695351 (the Edinburgh Patent) and made it clear that patents on human embryonic stem cells cannot be granted,
J. whereas the Directive allows the patenting of human DNA only in connection with a function, but it is unclear whether a patent on DNA covers only the application in this function or whether other functions are also covered by the patent,
K. whereas the issue to be reviewed, according to the first report submitted under Article 16(c) of the Directive, is the question whether patents on gene sequences (DNA sequences) should be allowed in accordance with the classical model of patent claim, whereby a first inventor can claim an invention which covers possible future uses of that sequence, or whether the patent should be restricted so that only the specific use disclosed in the patent application may be claimed ("purpose-bound protection"),
L. whereas over-generous granting of patents can stifle innovation,
M. whereas the public must be fully informed and the European Union must play a leading role in promoting public debate,
[...]
11. Notes that any person may file a notice of opposition to the patent according to Article 99(1) of the European Patent Convention;
12. Asks the Commission to file a notice of opposition to patent EP1257168 without delay;
13. Calls on the European Patent Office, the Commission and the competent authorities in the Member States to work together with Parliament to confirm that all kinds of human cloning are excluded from patenting under the Directive;
[...]
18. Requests the European Patent Office to set up a further body which, because of the sensitivity of the issue, checks patents that are sensitive from an ethical point of view before they are granted;
[...]"
As the European Patent Office (EPO) is not part of the EU system but based on the European Patent Convention (EPC), this attempt of the European Parliament to interfere with the practice of the EPO might, on a political scale, be considered fairly offensive. Therefore, I think it is proper to say that such kind of a move of an EU institution can be seen as part of a political long-term strategy to bring the EPO under the control of the EU. This might well be understood as a major reason why even Mr. Lehne has decided to push such motion.
The straight way to effect an 'unfriendly takeover' of the EPO by EU would be to implement the idea of a European Community Patent requiring the EU to formally join the EPC as a further contracting party. The Community Patent, however, seems to be difficult to reach at the time being due to political problems, in particular concerning the language regime.
Now it looks as if the European Parliament wants to exert political pressure on the individual EU Member States to restrict the EPC via the Administrative Council of the European Patent Organisation and/or, in particular, via another Diplomatic Conference on the Revision of the EPC. Things like seting up a further body which checks patents that are sensitive from an ethical point of view before they are granted surely would require political majorities in the Administrative Council and probably even in a Diplomatic Conference.
It does not come as a surprise that, despite not being related to the patentability of computer-implemented inventions, the resolution is acknowledged with interest by FFII.
[UPDATE 2005-10-27] The EPO has publicly responded to the resolution of the European Parliament:
"[...] The European Patent Office (EPO) has noted the concern that several groups in the European Parliament have expressed about the grant of European patent EP 1257168 B1. However, the Office emphasises that it follows an extremely cautious approach in patenting biotechnological inventions.
In motions communicated to the EPO, members of the European Parliament have stated that, in their view, the grant of this patent, which is entitled “Method of cryopreserving selected sperm cells”, constitutes a violation of the Directive on the legal protection of biotechnological inventions (98/44/EC). The MEPs maintain that the patent also covers non-patentable human germ cells. They have therefore announced their intention to contest the grant of this patent by initiating an opposition procedure before the EPO. Other worries expressed in the motions concern the future development of the EPO’s practice in patenting human embryonic stem cells.
The President of the EPO, Alain Pompidou, has confirmed that such a patent was granted to the US Company XY Inc. of Fort Collins, Colorado, in February 2005, pointing out that the nine-month period during which oppositions to the patent can be filed by third parties will terminate on 2 November 2005: 'The European patent grant procedure allows anyone to formally oppose a patent if they are of the opinion that it should not have been granted. This is an inbuilt legal remedy for establishing legal certainty on the patentability of an invention.'
[...]
Mr Pompidou acknowledged that, despite all the quality controls in place at the EPO, it is impossible to rule out the possibility that some patents do not meet its high quality standards in all aspects. For the current year the EPO expects to receive 190 000 patent applications. In 2004 the Office granted 60 000 patents, each one of them after a rigorous three-step procedure involving a comprehensive novelty search through more than 55 million documents and a thorough examination for compliance of the claimed invention with patent law. “The task of our 3 400 patent examiners is extremely challenging. They work at the forefront of technology and have to take difficult decisions within a complex legal and ethical framework, knowing that there is always a risk of inaccuracy. However, the European patent system takes that risk fully into account and has inbuilt legal remedies to oppose granted patents”, the EPO President explained.
With the help of the EPO’s free patent information services such as epoline® and esp@cenet®, it is possible for anyone to inspect files pending before the EPO at all times: “The patent system provides complete transparency on any case pending or granted. Anyone who wishes to do so can monitor progress on any file at all stages of the procedure and even send us observations without getting legally involved in the case, and we will have to take them to account.”
[...]
On the question of human embryonic stem cells, President Pompidou pointed out that the EPO has so far taken a very restrictive approach to the patenting of human embryonic stem cells and cell lines obtained from them. Following the “Edinburgh patent” case, the EPO has not granted patents for such inventions. Moreover, it has raised objections to the patentability of inventions pertaining to human embryonic stem cells in a number of applications that have been examined so far. The EPO's Technical Board of Appeal is called upon to give a first decision on the subject on 18 November. It has the option of referring the issue to the EPO's highest instance, the Enlarged Board of Appeal, for a definitive legal ruling. [...]"
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
Joint Motion for a Resolution on patents for biotechnological inventions. Primarily, the Parliament refers to 
