Dear All
Congratulations to all for the good work. In Switzerland we issued a media realease onyl Friday and the response has been limited so far.
Regarding the decision by the Enlarged Board of Appeal I like to raise the question if we should not more heavily criticse their decision that the new interpretation should only be valid for patents filed after 1. July 2017. We also raised this in the Swiss Press Release. It was also criticised by german breeders. Just some thoughts on this:
The EBoA argued in the following way: «In order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board considers it appropriate that the new interpretation of Article 53(b) EPC given in this opinion has no retroactive effect on European patents containing such claims which were granted before 1 July 2017, when Rule 28(2) EPC entered into force, or on pending European patent applications seeking protection for such claims which were filed before that date.»
This would mean that :
* there will be even patents (filed before 7/2017) on conventional plant to be granted in the future (would be nice if Ruth could tell us how much patents fall under this criteria: filed before July 17 but not granted so far). * all oppositions and appeals halted in the last years will still be interpreted using the old interpretation! * We will have many valid patents on conventionally bred plants valid for the next 15 years.
I think it would be good to check with a lawyer if such an approach is common ( I do not think so). What the EBoA has decided in not to stop a retroactive effect but to perpetuate the old interpretation into the future (as future decisions on old patents will still grant patents on conventional bred plants. I think the only correct approach would be that all decisions by the EPO (granting patents, decisions on oppositions and appeals) have to follow the now valid interpretation from now on.
Would be good if other decision by the EBoA in the other direction (e.g. when he decided to broaden the scope) had the same effect that patents filed before the broadening of the scope are not granted I doubt.
As a fallback : It would be possible to argue that only after the first decision by EBoA in 2015 (and before the decision by the admin council) a patent holder had certainty that he will get a patent on conventionally bred plants. Therefore all patents filed before 2015 should not fall unter the old interpretation.
The EboA argues they do this in order to ensure legal certainty. But the contrary is the case. As we know the commission, the parliament and all member states follow the new interpretation. Therefore it is forseeable that also national courts and the european court of justice would follow this rule. So it rather seems that this kind of patents will be enforceable in front of courts. But when the EPO still grants patents which cant be enforced this does rather increase the legal uncertainty. The mess continues.
Therefore I think we should also use the upcoming administrative council to question this part of the decision taken by the EBoA.
Best
François
PS: Etappensieg! Nach über 10 Jahren Kampf zusammen mit der Koalition «No Patents on Seeds» hat das Europäische Patentamt Patente auf konventionell gezüchtete Pflanzen verboten. https://www.prospecierara.ch/de/erleben/news/news-detail/news/patente-auf-k onventionell-gezuechtete-pflanzen-verboten.html Mehr
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ProSpecieRara
Schweizerische Stiftung für die kulturhistorische und genetische Vielfalt von Pflanzen und Tieren
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