Daily Archives: September 17, 2009

The final chapter in the “Enola” case has closed

We have been impatiently waiting for the moment we can finally, finally consider the “Enola” matter laid to rest.  That moment has now come….  Please see link to a news release from CAS-IP.

Picture by Neil Palmer, CIAT.

Picture by Neil Palmer, CIAT.

The U.S Court of Appeals for the Federal Circuit (CAFC) dismissed the claims of the original “Enola” patent in July 2009.  See our blog entry on the news.  However, shortly afterwards POD-NERS petitioned for a panel rehearing, arguing that the panel had misapplied the court’s obviousness precedent.  Today we received word that the POD-NERS petition for rehearing was denied on the 16th September 2009.

From this experience, it is clear that information and research results produced by public organisations such as the CGIAR should be clearly and easily accessible to patent examiners.  The examiners at the USPTO describe great difficulty in finding printed material about yellow beans during the patent examination process.  On re-examination however, a previous publication on some yellow beans served as ‘legal’ prior art in this case.  Together with information on gene typing that was submitted by CIAT scientists it was possible to clearly show that certain yellow beans and Enola were in fact the same.

This highlights the legal and practical utility of making publications more widely accessible, and directly through the databases accessed by patent examiners.

One such step CAS-IP, ICRISAT and CIAT have been involved in is an initiative to put publications in front of patent examiners. Under a Memorandum of Understanding executed with the EPO, publications are periodically uploaded onto the EPO’s own Non-Patent Literature database.  This is the in-house database that EPO examiners use.  This ensures that prior art searches will immediately include research results and information published by centre scientists (see our blog post explaining the initiative).   CAS-IP is pressing forward to facilitate having other Centers and public agricultural institutes sign up to this program.  In addition, CAS-IP is working with other patent offices such as the US Patent and Trademark Office, (USPTO), and ICRISAT is working with the Indian Patent Office to find additional means for easy ways to provide patent examiners with information.

Finally, back to “Enola” — congratulations to CIAT, and to all those who were involved (including CAS-IP) an the effort that only annulled the “Enola” patent, but also raised awareness which could help avoid this kind of misappropriation of public goods in the future.

“Modern seeds”, traditional varieties and Plant Variety Protection (PVP)

http://allafrica.com/stories/200909100188.html
Interesting article from Allafrica.com.  It deals with a thorny collection of the issues surrounding seed, increasing use of UPOV protection by seed developers, the rights of farmers, genetic diversity and the livelihoods of poor farmers.

The AllAfrica write up also references a news release that was on the International Institute for Environment & Development (IIED) website.  This article also includes several references to the loss of benefit to small-scale farmers from new variety development.  The IIED say in their post:

“Small-scale farmers rarely benefit when outsiders such as corporate plant breeders make use of their traditional seeds to develop new varieties, because the plant breeders acquire the intellectual property rights when they test and register the new varieties.”

It is worth pointing out that IPRs over a new variety don’t affect the rights of the traditional variety used in the breeding.  The public sector should be aware of the workings of the formal IP sector to be able protect its public goods effectively.  Being proactive about cataloguing and listing known varieties in common knowledge databases will avoid confusion about what is new and what is not!  This is critical information to a PVP examiner processing an application for a “new” variety.   The PVP system could also help ensure existing knowledge remains free from restriction, but of course only if that “existing knowledge” is specified and accessible to examiners.

Seems we weren’t the only ones to raise an eyebrow at the IIED article.  See the post (and subsequent debate) on the Agricultural Biodiversity Weblog from earlier this month.  It picks up on the subject of genetic use restriction technologies (GURTs).  It’s a good read!

Thanks to Kalpana Sastry, Principal Scientist at NAARM for sending the AllAfrica link.