MUNICH – Farmers’ associations, environmental, aid and development organisations together with anti-patent activists of the free software movement met this week for one of the largest anti-patent rallies in Munich.

Bringing a herd of pigs to the European Patent Office (EPO) between one and two thousand protesters asked for an end of patents on animals, plants and breeding and for changes in European patent law. Representatives of the “No Patents on Seeds” alliance during the event delivered 5,000 complaints to the EPO against a patent on pig breeding granted by the EPO to US company Monsanto last year. The deadline for complaints on the disputed patent ended on 15 April.

The pig breeding patent meanwhile was sold in a transaction to US-based Newsham Choice Genetics. After their march, biopatent and software patent critics considered further joint actions.

Christoph Then of Greenpeace, one of the partners of the “No Patents on Seeds” alliance, said at a roundtable after the march that there was a momentum for the fight against patents. With more and more patents granted by the EPO on conventional breeding and farming (instead of genetically modified versions) and plants that have been cultivated by farmers over centuries, society and politicians have started to ask, “how can they get a patent on a pig?,” said Then.

Mobilising Effect of the Pig Breeding Patent

In a study commissioned by Greenpeace, Then and his co-author Ruth Tippe listed 40 patents on breeding methods for pigs, cows or plants, most of them already granted by the EPO. Then ridiculed the inventive step of these patents by comparing them to the selection of elephants for breeding depending on average nose length measured with a yard stick.

After the pig breeding patent had been granted, farmers “started to pay attention to the issue and are asking what this office is up to,” Tippe told the protesters. She collected the 5,000 individual complaints against the pig breeding patent. These complaints now have to be checked by the EPO and sent to Newsham for comments.

Tippe underlined the concern of German farmer associations that the breeding patents would lead to a complete dependence on large multinational companies and an end to free farming despite assurances by the EPO that the patents did not include the animals themselves.

EPO spokesman Rainer Osterwalder told Intellectual Property Watch that only 12 of the original 30 claims were granted in patent No. EP 1651777. Monsanto originally asked to get a patent on a herd of pigs that had a particular gene related to faster growth. Still, Osterwalder, conceded: “Some of our legal experts say the patent could be interpreted to extend to the offspring, others say it cannot.”

Osterwalder said a patent violation would have to be proven when the growth gene is found in piglets. But the president of the Association of Peasant Farming (Arbeitsgemeinschaft Bäuerliche Landwirtschaft), Friedrich Wilhelm Graefe zu Baringdorf, said that the reversed burden of proof makes it nearly impossible for small farmers to escape royalty claims by big multinationals.

Seed-related cases in the United States and Canada related to seeds also have made this clear, said Mute Schimpf from the Catholic development organisation Misereor, which also is a partner in the No Patent on Seeds alliance. Misereor and Greenpeace partnered with the government of Mexico in fighting for the revocation of a patent by multinational DuPont on corn grains and products with improved oil composition.

The patent would have laid claim to plants that have been traditionally cultivated by farmers in Latin America, said Schimpf. The patent was revoked by the EPO. Then warned that seed and breeding patents lead to higher costs in developed countries and to hunger in the developing world.

German State Governments Plea for Change in EU Patent Law

“The discussion on the pig patent in fact appears absurd,” said Bavarian Environment Minister Markus Söder. “The integrity of creation is more important than the profit interests of a few greedy gene companies.” Söder announced that Bavaria would join the state of Hesse in its initiative to change European patent law in order to prevent patents on life.

“We want nothing less than a change of the EU patent law,” said Then. “We won’t stop for less.” He promised the alliance would come back even after the European Parliament election in June this year to remind politicians of their promises. The biggest political goal is the abolition of the EU Biopatent Directive, Then said in the roundtable. “Without it the EPO would lack any legal basis for the patents on life,” said Then.

Yet software patent critics including Richard Stallman, founder of the Free Software Foundation, and several representatives from the Foundation for a Free Information Infrastructure said that not having a EC Directive did not help them to prevent patenting in the software sector. Contrary to the anti-biopatent community, the anti-software patent community so far has succeeded in squashing all attempts to introduce a software patent directive.

Stallman warned against the threat patents pose to free farming and free software engineering, and heavily criticised the EPO for its grant practice. He called it an “evil and malicious organisation” Europeans should try to get rid of and should in the first place try “to stop treating every EU institution as if it was sacred and inscrutable.”

EPO representatives at the protest, meanwhile, pointed to several activities of the office to fight trivial patents. The “raising the bar” project was aimed at ensuring quality patents with satisfactory inventive steps. For the first time, the EPO is granting less than 50 percent of the patents applied for, said an EPO representative. With regard to computer-related inventions only seven percent were granted, and for biopatents, 39 percent.

Well over 90 percent of the biopatents granted were narrowed in scope before the grant, they said. Moreover, with regard to computer-related inventions, the EPO “has referred a number of questions to the Enlarged Board of Appeal of the EPO” to seek to clarify existing grant practice related to article 52 (2) and (3) of the European Patent Convention.

Next Action

The software patent critics and biopatent critics now are discussing how to join forces in a next step. After the successful protest march as a first joint action, Then said the groups should consider fighting one of the trivial patents related to both areas like a “method for combinatorial optimisation in plant or animal breeding” granted to a Belgian company that would interfere with the mere possibility of farmers using their computer to select animals for breeding from a database containing data on genotypic or phenotypic characteristics. Such a complaint again might be able to show the low level of the requirement for the inventive steps in patent applications and how broad the granted patents were.

Oncology expert Alfons Meindl from Munich University warned in the roundtable meeting also against another area of patenting that would cause harm to people. There was a wild rush to patent human genes and even small fragments of genes, the so-called, expressed sequence tags. Meindl said for example he and other physicians in Europe could possibly face patent violation complaints after a technical board of appeal at the EPO decided to maintain a patent (EP 699754) on a “Method for diagnosing a predisposition for breast and ovarian cancer.” On patenting in medicine and biogenetics, Meindl said, “Patents are the last thing my patients need.”