Human genetics : minutes of evidence, Wednesday 8 February 1995 ... / Science and Technology Committee.
- Great Britain. Parliament. House of Commons. Select Committee on Science and Technology
- Date:
- [1995], ©1995
Licence: Open Government Licence
Credit: Human genetics : minutes of evidence, Wednesday 8 February 1995 ... / Science and Technology Committee. Source: Wellcome Collection.
23/40 (page 93)
![8 February 1995] [ Continued Dr Williams 418. I have just one quick question, Mr Chairman. What would be the consequences, Mr Armitage, if there was a ban on patenting naturally occurring gene sequences, -allowing perhaps artificial or synthetic variations on it? What would be the consequence of doing that? (Mr Armitage) From one point of view it would be almost nil because I cannot at the moment think of a patent that had a claim directed to an intact human gene. It is nearly always directed to a small, often very small albeit very important, component of a human gene. If you are saying that any part, any DNA fragment, from a human gene should also be unpatentable, then you run into all kinds of difficulties as to how small does it have to be, and when you get down below about 20 bases you are entering the area where it is going to occur statistically in the human genome anyway and what happens if you have got a patent for a gene fragment or a DNA fragment which you think is not naturally occurring and it turns out later to be naturally occurring—is your patent then invalid? You can see that by making ad hoc legislation of this kind you increase the boundary of uncertainty, you create work for lawyers like myself, which I am very happy with, and you— 419. No, quite the converse was the intention, I promise you! (Mr Armitage) Of course, I appreciate that! 420. [should have thought that if the law was quite clear and everything was there before that did not take our inventiveness to find out, when it is just pure knowledge, if all that is done is to uncover that truth that is always there, why should there be that difficulty, whether it is 5 bases, 20 bases or 3,000? (Mr Armitage) You are dealing with two different issues here. One is whether it should be patentable in principle and the other is whether as a matter of social policy one should create a special exception to existing normal rules of patentability. Now I would address the second one because I think that the first question is already well established. You can patent a known substance from nature that you have newly discovered and characterised. That is so well established that you are not going to put that genie back in the bottle. The question is in relation to the human gene as DNA, as chemical substance, should we or should you or should the government create a special exception to patentability for that, and I would say that in general ad hoc legislation should be restricted to those circumstances where it is absolutely vital that it be created such as, for example, was done in the case of copyright for computer programmes. It should be addressing a particular and very serious concern and need, and I do not believe that in this case there is or has been demonstrated such a need to create ad hoc legislation. Chairman 421. Right, thank you for that, Mr Armitage. Let me conclude on a rather banal question. You heard us talking about the European Patent Office earlier with our colleagues from the British Patent Office, so we should like to ask your opinion—users of the system—and whether you would care to comment on the experience that you have had with the European Patent Office, has it done its work effectively and, in so far obviously as patents can be challenged in the courts, what is the sort of cost that is involved in making such a challenge? (Mr Roberts) The general operation of the European Patent Office I would say from the point of view of industry and the professionals dealing with it has been extremely satisfactory. I think that since its birth the European Patent Office has been aware that it has competition from local offices and it has to provide a service that will be of benefit to applicants. I would perhaps say here, Mr Chairman, that lama little concerned about the possibility of the ratification of the CPC—the Community Patent Convention—which will change from a bundle of European patents being granted by the European Patent Office to a unitary Community patent because it appears that if we have such a patent it is going to have to be translated into all the languages of the European Community and because of the expense nobody will use it—there will be about three patents a year! Sir Trevor Skeet 422. May I just follow that one up, Mr Chairman. In view of your experience as practitioners would you like to see any modification of the 1977 Patents Act or the 1988 Act? (Mr Roberts) Personally I would refer specifically to a point that that came up earlier, that is, the point that it is not possible to raise the question of fair basis for a claim after the examination process so that a third party cannot come along and say, all right, your invention is new, but it is being claimed far too broadly. That is a small change that a number of people would like to see made. Chairman 423. Mr Armitage, would you like to add to that? (Mr Armitage) Yes, Mr Chairman, thank you. The comptroller-general obviously had forgotten that particular point when he said that all of his decisions were capable of being challenged in the courts. That particular one is specifically excluded. There is a strong body of opinion in this country that it should be altered. We had the same problem with the European patent convention. The European patent system, the European Patent Office fees, are much too expensive, they charge for the wrong things— that is to get the patent. On the question of challenging I can speak from the point of view that I send the bills out to clients. Bearing in mind the extent of the European patent it is not particularly expensive to challenge it as compared, for example, to the United States. To challenge a United States patent, if you can do it at all, is hideously expensive. The European system works rather well. It is over- priced in certain key areas. The national patent offices of national governments are taking a huge rake-off for doing nothing, including our own. We do need this ability to challenge after grant the breadth of the patent claimed. If there is anything else, Mr](https://iiif.wellcomecollection.org/image/b32230175_0023.jp2/full/800%2C/0/default.jpg)
