Patents, De-Extinction and Species Return

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dadoyle
Posts: 2
Joined: Mon Jan 29, 2018 7:46 pm

Patents, De-Extinction and Species Return

Post by dadoyle » Mon Jan 29, 2018 8:11 pm

In the past few decades, dozens of scientific projects have investigated the possibility of resurrecting extinct species through cloning, genetic engineering, and ‘breeding back’ programs (e.g., Heath hen, Passenger pigeon, Thylacine, Pyrenean ibex). Significantly, related scientific techniques are also being earmarked for species that are currently critically endangered and close to extinction (e.g., genetic rescue of the Black-footed Ferret; Pink pigeon; Florida panther). We have entered a strange period of uncertainty in our relationships with other life-forms: while the IUCN ‘Red List of Threatened Species’ paints a dismal picture of catastrophic species loss, the team leading a project to de-extinct the Woolly mammoth estimates that it is just two years away from creating a hybrid mammoth-elephant embryo (Devlin, 2017).
De-extinction is at the frontier of genetics and biotechnology, and will inevitably test the flexibility of patent law and practice. Has the EPO considered whether de-extinct species will qualify as patentable subject matter?


EPO / Patent Information
Posts: 441
Joined: Wed Nov 12, 2014 3:36 pm

Patents, De-Extinction and Species Return

Post by EPO / Patent Information » Tue Feb 06, 2018 1:33 pm

Dear Forum user,

Thank you for your query with regard to the patentability of “de-extinct” species which has been forwarded to Directorate Patent Law. Please understand that Directorate Patent Law only provides general legal information regarding procedures before the EPO, without prejudice to the decisions of the competent departments in each individual case.

You asked whether “de-extinct” species, i.e. species which have been extinct and have been resurrected by various means would qualify as patentable subject matter.

Under the EPC inventions in all fields of technology are patentable (Art. 52 (1) EPC).
Rule 27 (b) EPC clarifies that this includes the patentability of plants and animals are per se, as long as the technical feasibility of the claimed invention is not confined to a particular plant or animal variety. Thus if a species fulfils the general patentability criteria, in particular the criterion of novelty in the sense of Art. 54 EPC, there is no apparent reason why it should be exempt from patentability merely because it is “de-extinct” in the sense that you describe.

Furthermore, we would like to draw your attention to new Rule 28(2) EPC which reads: “Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.”
Rule 28(2) EPC excludes products (plants/animals and plant/animal parts) exclusively obtained by non-technical, i.e. essentially biological processes like crossing and selection.
The term exclusively is used here to mean that a plant or animal originating from a technical process or characterised by a technical intervention in the genome is not covered by the exclusion from patentability even if in addition a non-technical method (crossing and selection) is applied in its production (see Guidelines for Examination in the European Patent Office, G-II-5.4).

It will thus be examined in any given case how the claimed “de-extinct” species was obtained in order to assess whether it contravenes the requirements of Art. 53 (b) EPC.

We hope this information is of assistance to you.
Kind regards,

The Patent Information User Support Team


dadoyle
Posts: 2
Joined: Mon Jan 29, 2018 7:46 pm

Re: Patents, De-Extinction and Species Return

Post by dadoyle » Tue Feb 06, 2018 1:45 pm

Dear Sir or Madam,

Thank you for your reply. I am interested in conducting research on the legal, commercial and ethical implications of de-extinction and wonder is there anyone at the EPO that I could contact directly or interview for this project.

If you could advise me in this regard at your convenience I would be much be much obliged.

With thanks and best wishes,
David.


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