Pelargonium: EPO publishes grounds for Schwabe patent revocation (24.04.2010)

The written decision setting out the grounds for the revocation of the Schwabe Pharmaceuticals Pelargonium Patent (EP02777223), has been published by the European Patent Office. As expected, the decision fully confirms the arguments presented by the Opponents during the hearing.

The EPA reiterates its view that the Schwabe Patent is not based on an inventive step (sect. 56 EPC), and that the patent is therefore revoked in its entirety on this ground. The Patent Office has made no finding on the question of biopiracy or the sustainable use of the species in the wild in South Africa by Schwabe.

In fact no ruling was made on these issues. The question remains as to whether the current patent law in Europe will bar inventions based on biopirated biological material and/or traditional knowledge from being patented for infringement of ordre public (sect. 53 (a) EPC). This problem will be resolved in the near future when a new legally binding international protocol on Access and Benefit-Sharing under the Convention on Biological Diversity comes into force.