European Patent Office Press Release in Response to EP Vote on Biotech Inventions (link)

October 28, 2005

Munich, Oct 2005

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"The EPO follows the EU's Directive on biotechnology patents"

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."

Opposition procedure

In view of the pending case, Mr Pompidou declined to comment on the individual objections expressed in the motions: "We take the concerns voiced by the MEPs very seriously. However, it will be the task of a dedicated EPO body, the opposition division, to consider the case in the light of the formal grounds brought forward by opponents. To date, such a procedure could not be opened as no oppositions have yet been filed." He added that every year around 5% of the patents granted by the EPO are contested in opposition proceedings. In two thirds of these cases, the patent is changed or even revoked in its entirety.

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