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Article appeared in European Voice, July 2005 

Is the EU doing enough to protect intellectual property?

If you look at the issue of protecting intellectual property in Europe, there seems to be a clear cut case: granting patents to scientific and technological discoveries is thought to help securing investments and to have positive effects on competition and progress. However, the current picture in the EU is in fact one of over-compensation with patents and one where discoveries are being patented and not inventions. This not only hinders development, but also has negative effects on us as consumers and citizens. What is therefore at stake is not a better protection of intellectual property, but a safeguarding of a creative competition, from which everyone in Europe will benefit.

Recent developments exemplify the massive problem with granting too many patents for mere discoveries. In July, the European Parliament stopped the directive on the patentability of computer implemented inventions, also called software patents directive. By rejecting the Commission's proposal, the Parliament took a strong stand for ensuring creative competition, technological progress and consumer protection in Europe. Only big companies would actually benefit from such a patent directive. For small and medium enterprises, the proposed directive would have been a disaster: they would have had to pay high fees for having to register patents, and would not have the financial security to engage in long patent legal proceedings. For us as consumers, the directive would have meant that we would very likely have to use operating system and software of one company, because software patents would interfere with developing inter-operational programs.

Or consider the bio-patent directive. Even at the time of its adoption in 1998, the bio-patent directive was scientifically outdated. It should have been seen as ready for a complete overhaul at the latest when the human genome was sequenced. We now know that 40 to 60 per cent of human genes are multi-functional in their composition. It is simply not justified, scientifically and commercially, to grant these various functions to a patent applicant, when this applicant only sequenced one gene and identified an initial commercial application, and at the time of the patent application, additional functions are neither known nor detected. With its recent report on the bio-patents directive, the Commission indirectly had to acknowledge these shortcomings and inconsistencies.

The issue at stake is whether every discovery can be considered patent-worthy. We need to make a stronger distinction between a discovery and an invention. What if Columbus had been granted a patent for his discovery of America and subsequently everything from America would have been patented? What if a mere discovery of a river or a mountain is being granted a patent? If you look at human genes, the difference between discovery and invention becomes obvious. The bio-patent directive allows for far-reaching patenting of human genomes, of parts of the human body, of plants and animals. However, human genes are not simply substances, but information carriers within a complex operating structure. As such they are not an invention, but a discovery. Why should it be possible to grant a patent then, denying others commercial use?

A survey in the USA found that half the laboratories questioned did not develop their own, improved diagnostic methods because of relevant patents being granted before. Laboratory directors believe that patents and licences have had a negative impact on access, cost, and quality of testing, and on information sharing between researchers. Granting patents too quickly for something which is a mere discovery can actually halter technological and scientific development and is likely to keep us away from absolutely crucial research being carried out.

The bio-patent directive also reveals another problem: it does not offer any protection against the commercialisation of human life. Greenpeace has just revealed that the European Patent Office (EPO) granted a patent on the selection of a child's sex, when that child was conceived in vitro. The patent comprises the technical process as well as the germ cells itself. This is the first time a germ cell was granted a patent. In 2005 alone, the EPO has already granted 100 patents on genes, 50 on seeds and plants and 20 on animals. But the EPO does not check if something actually works, but only if something is new.

There is no justification for the current trend to over-compensate with patents in Europe. A complete renegotiation of the bio-patent directive, as well as a reconsideration of general assumptions about what we consider discovery and invention is therefore absolutely necessary. All of us supporting innovations should have an interest in stopping these developments going off course.