From New Scientist magazine, December 9, 2000

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 "limbo" at the request of inventors waiting to see if their drugs will be approved.

This logjam is not helped by uncertainty over the European Union's 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. "What 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?"

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. "Paper publication will have to stop sometime, and that day is not far off," says David Newton, head of the British Library's science section.

But there's 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 -- if their library has any.

"The poorest countries are already greatly disadvantaged when it comes to developing, filing and defending patents," says James Deane of the Panos Institute, a development think-tank in London. "This 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."

Dr. Mercola's Comment:

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