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"Oncomouse" opposition proceedings resume at EPO

Munich, 5 November 2001 — The European Patent Office (EPO) has resumed opposition proceedings against Harvard University's "oncomouse" patent. The opposition division in Munich has invited the parties - Harvard University as the patent proprietor and 16 different groups, individuals, political parties and organisations wanting the patent revoked - to three days of oral proceedings, starting on 6 November.

At issue is the first European patent for a transgenic animal, namely a mammal genetically engineered to develop cancer tumours under certain conditions and therefore suitable for cancer research. The patent has been in force since 13 May 1992.

The "oncomouse" application was filed with the EPO in June 1985. Initially, on 14 July 1989, the examining division refused the application, inter alia on the grounds that Article 53(b) of the European Patent Convention prohibits European patents on animals per se. The applicant appealed against that decision, and on 22 October 1990 an EPO technical board of appeal set it aside and sent the case back for re-examination.

The board of appeal held that Article 53(b) EPC rules out patents on animal varieties, not animals generally. The examiners therefore had to decide whether the application was for an "animal variety" within the meaning of the provision, and also whether to invoke Article 53(a) EPC which prohibits patents for "inventions the publication or exploitation of which would be contrary to ordre public or morality".

In a second decision in October 1991, the examining division granted the "oncomouse" patent as complying with the EPC, commenting that the patent application's purpose - to facilitate cancer research and prevention - was of such importance for humanity as to outweigh any disadvantages such as the suffering of the animals concerned.

Oppositions to this patent have been filed by numerous individuals, animal-rights groups, church organisations, the campaign against "patents on life", and various sections of the German Green party.

Within nine months of grant, anyone can oppose a European patent, without having to show any legal interest. About 6% of the EPO's patents are opposed in this way. The proceedings end with the patent's revocation, or its maintenance in full or in part. The decision taken by the three-examiner opposition division (plus a legal expert in some cases) can in turn be challenged before the EPO technical boards of appeal.