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

Fikremariam Ghion; Biruk Haile

doi:doi:10.11648/j.ijls.20210403.16

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

Fikremariam Ghion, Biruk Haile

Published in International Journal of Law and Society (Volume 4, Issue 3)

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), 2024. Published by Science Publishing Group

Keywords

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

References

[1]	See Art. 4 (1) of EPC.
[2]	See Art. 4 (3) of EPC.
[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.
[14]	See claim 28 of Teff Patent.
[15]	See Art. 63 (1) of EPC.
[16]	See Art. 64 (1) of EPC.
[17]	Cowan. R, Van der Eijk. W, Lissoni. F, Lotz. P, Van Overwalle. G, Schovsbo. J, (2007), Policy options for the improvement of the European patent system, European Parliament, p. 5.
[18]	See Art. 52, 53, 54, 56 and 57 of EPC.
[19]	See Art. 2 (1) of EPC.
[20]	La flame. M. (2010), The European Patent System: An Overview and Critique, Houston Journal of International Law 32 (3), 613.
[21]	See Art. 54 of EPC.
[22]	See Art. 56 of EPC.
[23]	See Art. 52 and 53 of EPC.
[24]	See Art. 99 of EPC.
[25]	See Art. 21 of EPC.
[26]	Cowan. R, Van der Eijk. W, Lissoni. F, Lotz. P, Van Overwalle. G, Schovsbo. J, (2007), Policy options for the improvement of the European patent system, European Parliament, p. 6.
[27]	Agricultural Transformation Agency, Annual Report (ATA, 2018) accessed 6 April 2021.
[28]	Minten, Bart, ed.; Taffesse, Alemayehu Seyoum, ed.; and Brown, Petra, ed. (2018). The economics of Teff: Exploring Ethiopia's biggest cash crop, International Food Policy Research Institute, 2.
[29]	Girma, Abinet, ed. (2010), Teff: The Story of Ethiopia's Biodiversity, Forum for Environment, p. 6.
[30]	Annette R Crymes. (2015), The International Footprint of Teff: Resurgence of an Ancient Ethiopian Grain, Arts & Sciences Electronic Theses and Dissertations 394, 9.
[31]	Agricultural Transformation Agency, 'Working Strategy for Strengthening Ethiopia’s Teff Value Chain: Vision, Systemic Challenges, and Prioritized Interventions' (ATA, 2015) 20 accessed 3 October 2019.
[32]	Ethiopian Ministry of Agriculture and Natural Resource. (2018), Crop Variety Register, Issue 21, 8.
[33]	Girma, Abinet, ed. (2010), Teff: The Story of Ethiopia's Biodiversity, Forum for Environment, p. 8.
[34]	FAO. 2015. Analysis of price incentives for Teff in Ethiopia. Technical notes series, MAFAP, by Assefa B. Demeke M., Lanos B, Rome.
[35]	Dawit Alemu and Kassahun Berhanu, (2018), The Political Economy of Agricultural Commercialization in Ethiopia: Discourses, Actors and Structural Impediments, Agricultural Policy Research in Africa, Working Paper 14. 30.
[36]	Ethiopian institute of agricultural research, ' An Overview' (Crop Research, 6 June 2015) accessed 14 June 2021>.
[37]	National Research Council (1996), Lost Crops of Africa: Volume I: Grains, National Academies Press. 221.
[38]	Asaye D. (2017), Screening of Teff (Eragrostis Teff) varieties for genotypic and phenotypic traits in Dejen Woreda, East Gojjam Zone, International Journal of Biodiversity and Conservation 9 (7), 240.
[39]	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, 221.
[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.
[41]	Elleni Araya, 'Teff: Ethiopia’s ancient grain not immune to rising food inflation' (Ethiopian Observatory, 2012) accessed 8 September 2020.
[42]	Bernandine Racoma, 'Introducing Teff, the New Super Grain from Ethiopia' (Day News, 2014) accessed 24 December 2020.
[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).
[44]	European Patent Specification EP 1 646 287 B1 (Teff patent), United States Patent Application Publication US 2006/0286240 A1 and International Application published under the Patent Cooperation Treaty WO 2005/025319 A1.
[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
[48]	Farm-direct, 'Wheat-characteristics and uses' (Modern Wheat, 2001) accessed 4 September 2019.
[49]	Regine Andersen and Tone Winge, (2012), The Access and Benefit-Sharing Agreement on Teff Genetic Resources: Facts and Lessons, FNI, 52.
[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.
[57]	Seyfu Ketema. (1997), Teff Eragrostis Teff (Zucc) Trotter Promoting the conservation and use of underutilized and neglected crops, IPGRI, 17.
[58]	Regine Andersen and Tone Winge, (2012), The Access and Benefit-Sharing Agreement on Teff Genetic Resources: Facts and Lessons, FNI, 109.
[59]	See page 2 of Teff Patent.
[60]	See page 3 of Teff Patent.
[61]	Ancientgrain BV vs Bakels Senior NV [2018] ECLI: NL: RBDHA: 2018: 13960 (District Court of the Hague).
[62]	European patent organization, 'Inventive step: General' (Guideline for Examination, 10 September 2019) accessed 10 September 2020.
[63]	Alemayehu Refera, 'Teff Post-Harvest Operation' (FAO, 14 May 2001) accessed 10 October 2019 p. 37.
[64]	See Art. 57 of European Patent Convention.
[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.
[67]	Amy Sandys, 'Heuking attempts to revoke Teff flour patent' (Juve Patents, 21 May 2019) accessed 21 November 2019.
[68]	See Art. 99-112 of EPC.
[69]	See Art. 21 (1) and 106 (1) of EPC.
[70]	According to Articles 52 to 57 EPC, the patent is not patentable or that the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, or that the subject matter of the patent extends beyond the content of the application as originally filed.
[71]	See Art. 99 (1) and 105 of EPC.
[72]	See Rule 76 (2) (c) of Implementing Regulations to the EPC.
[73]	Von Graevenitz, Georg; Wagner, STeffan; Harhoff, Dietmar; Hall, Bronwyn H.; Hoisl, Karin; Giuri, Paola; Gambardella, Alfonso (2007). The Strategic Use of Patents and Its Implications for Enterprise and Competition Policies, Report ENTR/05/82 for DG Enterprise, European Commission, 30.
[74]	See Art. 138 (1) of EPC.
[75]	Katharine Stephens and Audrey Horton (editor-Nicholas Catlin), The International Comparative Legal Guide to: Patents 2019, A practical cross-border insight into patent law, 9th edition, Global Legal Group Ltd., 216.
[76]	WIPO, 'An overview of patent litigation systems across jurisdictions' (Special theme, 2018) accessed 1 July 2021.
[77]	See Art. 72 (1) (a) of UK Patent Act of 1977.
[78]	Christian Helmers and Luke Mcdonagh, 'Patent litigation in the UK: an empirical survey 2000 –2008' [2013] 8 (11) Journal of Intellectual Property Law & Practice 846.
[79]	Nick beckett and jeremy morton, Austria. in Nick Beckett and Jeremy Morton (eds), International Patent Litigation Guide (CMS 2013) 5.
[80]	WIPO, 'Law on Patents 1970 (as amended up to Federal Law No 234/1984 published in the Federal Law Gazette (BGBI No 234/1984))' (Austria, 2018) accessed 2020.
[81]	See Art. 48 of the Austrian Patent Act of 1970.
[82]	Walter Holzer, 'Effective Mechanisms for Challenging the Validity of Patents' (WIPO, 2006) accessed 4 July2020.
[83]	Council of European Union, 'Towards an Enhanced Patent Litigation System and a Community Patent - How to Take Discussions Further' (Working document, 2007) accessed 4 July2020.
[84]	European patent academy, 'Proceedings for invalidity' (European Patent Organization, 2015) accessed 4 July 2020.
[85]	Licia Garotti, Italia. in Trevor Cook (ed), Patent Litigation Law Review (Law Business Research Ltd 2019) 168.
[86]	Italian Code of Industrial Property, effective from 2 September 2010.
[87]	See Art. 76 of Italian Code of Industrial Property.
[88]	Stuart JH Graham and Nicolas Van Zeebroeck, 'COMPARING PATENT LITIGATION ACROSS EUROPE: A FIRST LOOK' [2014] 17 STANFORD TECHNOLOGY LAW REVIEW 678
[89]	Belgium Patent Law of 1997.
[90]	See Art. 5, 6 and 7 of Belgium Patent Law of 1997.

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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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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
PY  - 2021
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
SP  - 193
EP  - 202
PB  - Science Publishing Group
SN  - 2640-1908
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

Fikremariam Ghion

Genetic Resource Access and Benefit Sharing Directorate, Ethiopian Biodiversity Institute, Addis Ababa, Ethiopia
Biruk Haile

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

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Plain Text BibTeX RIS

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}
}

Copy | Download

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
PY  - 2021
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
SP  - 193
EP  - 202
PB  - Science Publishing Group
SN  - 2640-1908
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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