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Nullification of European Patent: The Case of European Patent on Teff Flour Processing

Received: 17 July 2021     Accepted: 5 August 2021     Published: 31 August 2021
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Abstract

Various scientific studies and researches conclude that Ethiopia is a center of origin and diversity of Eragrostis Teff. Teff is a gluten free crop that has been originated and cultivated for centuries in Ethiopia. Due to its gluten free nature, most European and American consumers are fond this crop. This perhaps captures the interest of developed countries market which will contribute to the development and modernization of Ethiopia’s agriculture on which the country’s economy is massively dependent on. Conversely, as a result of the patent protection granted on Teff flour processing and the resultant gluten free Teff flour product made up of Teff and other gluten free and gluten containing crops in Europe, Ethiopia could not access European gluten free market. European patent on Teff flour processing granted by European Patent Organization (EPO) is still active and validated in some member countries to the European Patent Convention (EPC). Therefore, this research article will assess and evaluate the patentability requirements enshrined under EPC with the protection sought for Teff flour processing patent (Teff patent) granted by EPO. Further, domestic court decisions regarding Teff patent (decision of Hague court that hears the litigation between Ancientgrain BV vs. Bakels Senior NV) will also be analyzed to the extent relevant to this research article. At last, this article explores and discusses the domestic jurisdictions and laws that are necessary and instrumental for the invalidation/nullification of Teff patent.

Published in International Journal of Law and Society (Volume 4, Issue 3)
DOI 10.11648/j.ijls.20210403.16
Page(s) 193-202
Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.

Copyright

Copyright © The Author(s), 2021. Published by Science Publishing Group

Keywords

Teff Patent, EPC, EPO, Patent Invalidity and Infringement Action, Patent Revocation and Patent Claim

References
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[3] See Art. 2 (2) of EPC.
[4] Aurora Plomer, 'A Unitary Patent for a (Dis) United Europe: The Long Shadow of History' [2015] 46 (5) International Review of Intellectual Property and Competition Law 520.
[5] See Art. 64 (3) of EPC.
[6] European Patent Specification, processing of Teff flour 'EP 1 646 287 B1' (Teff Patent).
[7] See Art. 64 (2) of EPC.
[8] See claim 1 of Teff Patent.
[9] See claim 14 and 15 of Teff Patent.
[10] See claim 16 and 17 of Teff Patent.
[11] See claim 18 of Teff Patent.
[12] See claim 19 and 20 of Teff Patent.
[13] See claim 23 and 24 of Teff Patent.
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[15] See Art. 63 (1) of EPC.
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[40] Kebebew Assefa, Solomon Chanyalew and Zerihun Tadele (eds.) (2013). Achievements and Prospects of Teff Improvement; Proceedings of the Second International Workshop, November 7-9, 2011, Debre Zeit, Ethiopia. Ethiopian Institute of Agricultural Research, Addis Ababa, Ethiopia; Institute of Plant Sciences, University of Bern, Switzerland. Printed at Stämpfli AG, 3001 Bern, Switzerland, 6.
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[43] In the European Patent Specification published by the European Patent Office, the proprietor is listed as Health & Performance Food International B.V., but in the International Application published under the Patent Cooperation Treaty by WIPO the applicant (for all designed countries except the USA) is listed as Soil & Crop Cruise Control B.V. (in the USA the applicant is the same as the inventor, here listed as Jans Roosjen).
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[45] See claim 1 and 27 of Teff Patent.
[46] See claim 2 and 3 of Teff Patent.
[47] Sarah Best and Robert Muller. (1999), Use of the Hagberg Falling Number Apparatus to Determine Malt and Barley Quality, Journal of Institutional Brewery 77 (1), 273
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[50] See page 5 of Teff Patent.
[51] See claim 18 and page 16 of Teff Patent.
[52] See claim 28 and page 17 of Teff Patent.
[53] Regine Andersen and Tone Winge, (2012), The Access and Benefit-Sharing Agreement on Teff Genetic Resources: Facts and Lessons, FNI, 101.
[54] See Art. 54 (2) of EPC.
[55] See page 16 of Teff Patent.
[56] Beka Melkamu, Patenting Developing Countries’ Traditional Knowledge As New Invention: An Examination of the Teff Processing Patent Claim by a Dutch Company and the Way Forward. in Yihdego and others (eds), Ethiopian Yearbook of International Law 2018 (Springer Nature Switzerland AG 2019) 76.
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[59] See page 2 of Teff Patent.
[60] See page 3 of Teff Patent.
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[65] See Art. 4.6 of The Agreement on Access to, and Benefit Sharing from Teff Genetic Resources, signed on April 5, 2005 (Teff agreement).
[66] See Art. 4.5 of Teff agreement.
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[69] See Art. 21 (1) and 106 (1) of EPC.
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[72] See Rule 76 (2) (c) of Implementing Regulations to the EPC.
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Cite This Article
  • APA Style

    Fikremariam Ghion, Biruk Haile. (2021). Nullification of European Patent: The Case of European Patent on Teff Flour Processing. International Journal of Law and Society, 4(3), 193-202. https://doi.org/10.11648/j.ijls.20210403.16

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    ACS Style

    Fikremariam Ghion; Biruk Haile. Nullification of European Patent: The Case of European Patent on Teff Flour Processing. Int. J. Law Soc. 2021, 4(3), 193-202. doi: 10.11648/j.ijls.20210403.16

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    AMA Style

    Fikremariam Ghion, Biruk Haile. Nullification of European Patent: The Case of European Patent on Teff Flour Processing. Int J Law Soc. 2021;4(3):193-202. doi: 10.11648/j.ijls.20210403.16

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  • @article{10.11648/j.ijls.20210403.16,
      author = {Fikremariam Ghion and Biruk Haile},
      title = {Nullification of European Patent: The Case of European Patent on Teff Flour Processing},
      journal = {International Journal of Law and Society},
      volume = {4},
      number = {3},
      pages = {193-202},
      doi = {10.11648/j.ijls.20210403.16},
      url = {https://doi.org/10.11648/j.ijls.20210403.16},
      eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20210403.16},
      abstract = {Various scientific studies and researches conclude that Ethiopia is a center of origin and diversity of Eragrostis Teff. Teff is a gluten free crop that has been originated and cultivated for centuries in Ethiopia. Due to its gluten free nature, most European and American consumers are fond this crop. This perhaps captures the interest of developed countries market which will contribute to the development and modernization of Ethiopia’s agriculture on which the country’s economy is massively dependent on. Conversely, as a result of the patent protection granted on Teff flour processing and the resultant gluten free Teff flour product made up of Teff and other gluten free and gluten containing crops in Europe, Ethiopia could not access European gluten free market. European patent on Teff flour processing granted by European Patent Organization (EPO) is still active and validated in some member countries to the European Patent Convention (EPC). Therefore, this research article will assess and evaluate the patentability requirements enshrined under EPC with the protection sought for Teff flour processing patent (Teff patent) granted by EPO. Further, domestic court decisions regarding Teff patent (decision of Hague court that hears the litigation between Ancientgrain BV vs. Bakels Senior NV) will also be analyzed to the extent relevant to this research article. At last, this article explores and discusses the domestic jurisdictions and laws that are necessary and instrumental for the invalidation/nullification of Teff patent.},
     year = {2021}
    }
    

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  • TY  - JOUR
    T1  - Nullification of European Patent: The Case of European Patent on Teff Flour Processing
    AU  - Fikremariam Ghion
    AU  - Biruk Haile
    Y1  - 2021/08/31
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    N1  - https://doi.org/10.11648/j.ijls.20210403.16
    DO  - 10.11648/j.ijls.20210403.16
    T2  - International Journal of Law and Society
    JF  - International Journal of Law and Society
    JO  - International Journal of Law and Society
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    UR  - https://doi.org/10.11648/j.ijls.20210403.16
    AB  - Various scientific studies and researches conclude that Ethiopia is a center of origin and diversity of Eragrostis Teff. Teff is a gluten free crop that has been originated and cultivated for centuries in Ethiopia. Due to its gluten free nature, most European and American consumers are fond this crop. This perhaps captures the interest of developed countries market which will contribute to the development and modernization of Ethiopia’s agriculture on which the country’s economy is massively dependent on. Conversely, as a result of the patent protection granted on Teff flour processing and the resultant gluten free Teff flour product made up of Teff and other gluten free and gluten containing crops in Europe, Ethiopia could not access European gluten free market. European patent on Teff flour processing granted by European Patent Organization (EPO) is still active and validated in some member countries to the European Patent Convention (EPC). Therefore, this research article will assess and evaluate the patentability requirements enshrined under EPC with the protection sought for Teff flour processing patent (Teff patent) granted by EPO. Further, domestic court decisions regarding Teff patent (decision of Hague court that hears the litigation between Ancientgrain BV vs. Bakels Senior NV) will also be analyzed to the extent relevant to this research article. At last, this article explores and discusses the domestic jurisdictions and laws that are necessary and instrumental for the invalidation/nullification of Teff patent.
    VL  - 4
    IS  - 3
    ER  - 

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Author Information
  • Genetic Resource Access and Benefit Sharing Directorate, Ethiopian Biodiversity Institute, Addis Ababa, Ethiopia

  • College of Law and Governance, Addis Ababa University, Addis Ababa, Ethiopia

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