Thanks for the document Christoph!
About KWS, let us first have a look: Paul’s wording was like “it seems the report has mixed two patent application” so he did not seem to be 100% sure. And I can image that a process patent referring to 80 different species causes much uncertainty about the scope of that patent in relation to the species mentioned in the claims.
Best regards, Bram
From: Christoph Then info@no-patents-on-seeds.org Sent: Wednesday, 13 May 2020 14:18 To: Bram de Jonge Bram.de.Jonge@oxfamnovib.nl; npos_2018@testbiotech.de Subject: Re: [Npos_2018] update: Talks with German Minister and Media Release on EBoA (de und en)
deeply sorry if we mixed to applications from KWS - I will double check and it case we can publish a revised version. no problem. I can imagine we introduced a wrong EP number.
please see attached the text that was presented by the President and was used by the AC. I guess they fully adopted the paper, however we do not exactly know, maybe the only adopted the part on rules 28 (2). However, in the interpretation of the new rule - in any case - the preparatory text is decisive.
Am 13.05.20 um 13:22 schrieb Bram de Jonge: Thanks for the update Christoph, very interesting! If I get the chance, I will discuss with Marien Valstar from the ministry to see whether I can get more info on this. I am also preparing 2 Dutch press releases so that we can respond as well as soon as the decision comes out.
By the way, KWS did call me last week and when I asked about their critical comments on the NPOS report they (Paul Olson) responded that the report mixed 2 patent applications: one patent on the methodology that refers to those 80 species and one patent regarding material that only relates to Maize. I asked him why he/KWS had not sent more detailed comments so that we could have discussed this but he answered that he had advised against that as he had not considered it worthwhile due to the complexities involved. I hope they will do next time so that we can have a proper discussion on this. I did not yet check the patent applications myself but I assume the above issue is subject to interpretation.
Also Corteva got back to me and is asking to discuss the matter with Oxfam. We are now consulting internally whether we will accept this invite or not. I will keep you posted.
I am slowly getting to understand to full depth of the issue (not yet there though..), but can you possibly send me the “preparatory text of the EPO President” that you are referring to in your email below. When was this text developed?
Thanks! Bram
From: Npos_2018 npos_2018-bounces@testbiotech.demailto:npos_2018-bounces@testbiotech.de On Behalf Of Christoph Then Sent: Wednesday, 13 May 2020 12:45 To: npos_2018@testbiotech.demailto:npos_2018@testbiotech.de Subject: [Npos_2018] update: Talks with German Minister and Media Release on EBoA (de und en)
Dear all
yesterday, Annemarie, Georg and me had an interesting and very constructive meeting with the Minister of Justice in Berlin. It was organised by a Member of German Parliament. Please keep confidential.
(1) There seems to a plan which is already discussed and even agreed (?) with all other governments how to react to the EBoA in case, if the answer is NO: They want first to go to the EU to re-open the Directive 98/44 to sort out this issue. Then they will take a decision in the Administrative Council to adopt the EPC (change it,not only the rules) accordingly (see Art 33 (1) b)). It seems this plan was discussed in the AC just in their meeting after the decision of the Board of Appeal in Dec 2018.
We commented that this process suffers from major uncertainties and can be completely sacked by any parliament decision in any contraction state. In result, after two years or after a longer period of time, we would start from Zero. I mentioned that we discussed it with the president of the AC (Kratochvil) and discovered several weaknesses.
The ministry answered that they think a conference of the contracting parties would also take a long time to prepare.
We answered we are happy if they succeed, but we would be surprised if the EU could provide a solution and that we still recommend to call for a conference as soon as possible. I do not think they will follow us at this stage.
so point (1) was not very successful. But at least there is no doubt that they will get active if the verdict of the EBoA will contradict the decision of the AC. It would be interesting to get some insight in plans from Austrian government (or others) on their strategy.
(2) In case the EBoA says YES, they said, they think legal clarity is achieved. Random mutagenesis should then be sorted out by further decision making at the EPO.
We mentioned the decision of the AC, based on the preparatory text of the EPO President, might prevent the EPO from taking the right decisions. We mentioned that, without further clarification, freedom to operate can not be reached for conventional breeding. we explained that random processes to increase genetic diversity, followed by crossing and selection are not inventive. We mentioned Carlsberg and examination reports from the EPO made after June 2017 and before Dec 2018.
The round seemed to agree that random processes should be excluded. They seemed to agree that it should be tried to sort it out by legislation, not just by case law (as proposed). The ministry wants to check the possibility to first get clarification in national patent law.
we were asked to present cases of patents granted or patents being under examination, to see how the decision of the AC was applied before Dec 2018. We answered to do so.
so point (2) was more or less in agreement with our proposals (but with some legal expert of the ministry still trying to counteract)
Follow up:
the ministry will monitor the decision of the EBoA which they said it might come up in June (without any certainty).
we will present a list of examination reports and granted patents which show how the EPO was dealing with the AC decision before Dec 2018. I will discuss with Ruth.
we will keep in constructive dialogue with the ministry.
Let me know if there are any questions/ comments. We also might discuss on our next phone conference.
please see attached the revised version of the PR (in en and de) for the case the EBoA says YES, I am still working on the other one.
so lets keep pushing, it might get pretty exciting again ...
Christoph