THE stampede to file patents on biotech inventions is bringing the patent
system to its knees and may even create a new digital divide between rich and
poor countries.
Governments around the world are still debating whether to grant patents on
inventions such as animals genetically modified to produce drugs in their milk
or the sequence of a human gene linked to disease. But inventors themselves are
filing so many patents, and the applications are so long, that patent examiners
are buckling under the strain. Patent offices are legally obliged to publish
applications and libraries must display them.
Most patents only run to a few dozen pages, but in the past year the World
Intellectual Property Organization in Geneva has handled 30 applications for
biotech patents that were each more than 1000 pages long. Now the WIPO has had
advance warning of two huge biotech applications, each over 140,000 pages. The
European Patent Office (EPO) in Munich is sitting on a mountain of 7600
applications for biotechnology patents, many hanging in 鈥渓imbo鈥� at the request
of inventors waiting to see if their drugs will be approved.
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This logjam is not helped by uncertainty over the European Union鈥檚 1998
Biotechnology Directive, which tried to lay down rules on what could and could
not be patented. Only four countries had incorporated the directive in their
domestic legislation by the deadline of July this year. And the Netherlands has
challenged its validity in the European Court of Justice. If the court rules in
favour of the Dutch next year, the directive will be nullified.
Ron Marchant of the British Patent Office is concerned about the burgeoning
size of patents. 鈥淲hat brought it home to me was seeing an application arrive.
There were six big cardboard boxes, like bulk boxes of printer paper. It blew my
mind. Can you imagine an examiner having to read that much paper?鈥�
Patent offices are now trying to limit the size of applications and encourage
inventors to file electronically. The WIPO now demands a surcharge of 150,000
Swiss francs for paper applications more than 10,000 pages long.
The British Patent Office is seeking legal advice on whether it can publish
patents in non-paper form. The EPO and the Patent Cooperation Treaty offices
will already accept either paper or floppy discs, and are moving to online
filing. The US intends to abolish paper by 2005, and 90 per cent of Japanese
filings are already electronic because paper applications are surcharged. 鈥淧aper
publication will have to stop sometime, and that day is not far off,鈥� says David
Newton, head of the British Library鈥檚 science section.
But there鈥檚 a snag. This trend could undermine the principle that ideas in
patents should be freely available to all. When a patent is published on paper,
patent libraries around the world make it available for anyone to read. Access
to electronic files requires computers with CD-ROM drives or an expensive phone
connection. Researchers who lack such resources must compete for time on library
terminals鈥攊f their library has any.
鈥淭he poorest countries are already greatly disadvantaged when it comes to
developing, filing and defending patents,鈥� says James Deane of the Panos
Institute, a development think-tank in London. 鈥淭his trend could throw up yet
another obstacle to creating their own intellectual property, leaving them
further and perhaps permanently behind the rest of the world.鈥�