The Third Amendment to the Patent Law of China are expected to be approved and implemented early 2009. Some of the proposed changes, which were published in a draft released in March 2008, include:
- disclosure rules for inventions that rely on genetic resources or traditional knowledge and denial of a patent for inventions that “completely rely” on either if acquisition violated Chinese law or regulation;
- absolute novelty standard, which considers not only publication of the invention anywhere in the world and public use inside of China, but now also public use outside of China;
- a requirement that any invention made in China must be first filed in China and, before filing in a foreign country,must obtain a foreign filing license (like the license required by the United States);
- all co-owners of an invention must consent for assigning the patent and licensing the invention to others;
- liberalizing the rules for granting a compulsory license where the patent hasn’t been exploited within three years after patent grant, when there has been anticompetitive actions by the patent owner, when public interest requires it, or when a developing country lacks ability to manufacture a medicament;
- exempts from infringement those activities related to regulatory review.
For further information:China;patent law
According to the etc group in a recent communiqué, the “gene giants” - BASF, Monsanto, Bayer AG, Syngenta, and DuPont - have grabbed up the so-called “climate ready” genes in a total of 55 patent families. Many of the patents are said to be related to transcription factors that control stress responses, and to the proteins and genes encoding proteins that affect stress tolerance. In a discussion of several specific patents, ETC alleges that the claims encompass many plant species and, based on this, concludes that the patents are dangerously broad.
Like many reports of NGOs (non-governmental organizations) with political agendas, the etc group report is a mix of facts, mis-statements, and analysis that does not fully factor in patent law and procedures. Unfortunately, reports like this are splashed in headline news. The Washington Post featured the report in a story run on 13 May 2008. The story “Firms Seek Patents on ‘Climate Ready’ Altered Crops” was actually somewhat more balanced than its headline suggests, but I suspect that the headline has the most impact. What was still lacking in the story was a viewpoint from an expert in the patent field.
In the attached file, I’ve attempted to bring patent knowledge to bear on the report’s facts and conclusions. The basic finding is that etc group’s doomsday scenario is unwarranted. Visions of gene grabbing and holding farmers hostage are way overblown. At most, patents will be granted in only a handful of countries in the world; one major reason for this is that quite a number of countries do not allow patents on gene sequences or transformed plants. A positive fallout from the patent applications is that the sequences of the genes are published - and are free to use in countries where no patent on the gene sequence exists.
Overview patent landscapes, like this one by the etc group, are helpful for setting out the lay of the land. Conclusions about the impact of patents however, require more detailed investigation and expertise than the etc group demonstrated. In fact, we find that a detailed analysis leads to very different conclusions. In my view, it’s important - even critical - that we do not blindly accept the conclusions, but apply our knowledge to careful analysis and spreading the word.
Read or download etc climate gene commentaryTags: gene patents;genes