Dear Katherine

thanks a lot! highly interesting.

it is VERY encouraging that we caused a substantial debate and got support from several experts.

on the demand for a moratorium: This meant for reaching out on larger public, putting some more pressure on the AC by starting an new public call.

This can not be done instead of other activities, but just in addition.

To exemplify the problem, we already published a report on patent applications. We can repeat similar exercise in 2021.

And, we still can use the patents as granted before to show the current practise. However, I doubt we can create further relevant case law in 2021 (which I expect to be the year of the decision).

I would be very much interested in discussing the issue with the French experts. Technical process is not the right criterion when it comes to G2/07. Maybe Anne-Charlotte can help us for requesting a direct meeting.

NL looks to be difficult. I am afraid Plantum and friends are playing a questionable role. Maybe Bram can make a suggestion how to sort this out?

In general, it is difficult for member states to refuse a legal clarification if we can convince them that there is a contradiction between the prepatory document and the decision G2/07 (G1/08). As a matter of principle, they have to become active, even if they do not consider these specific patents to be a problem.

I agree that the UPC momentum should be used by us to try to change national laws.

so let us continue, there is some progress ..

and let us discuss it in our phone conference next week.

cheers

Christoph

Am 17.11.20 um 12:11 schrieb ARCHE NOAH Katherine Dolan:

Dear all,

 

I spoke to the Austrian Patent Office about the Patent Law Committee last week – some good news, some not so good.

 

There was a substantial discussion on the issue, even though the EPA had only put it on the agenda for information:

·         AT, DE, IT and NO were critical of patents on random mutagenesis / doubtful that it is a technical process, and said there was need for further action / clarification

·         AT also raised concerns about the practicability of the disclaimer (no other country said it had a problem with the disclaimer, however) and called on the EPA both to continue the discussion on plant patents and to present a document providing more detailed argumentation on the current approach to random mutagenesis, including how random mutagenesis is assessed in patent applications in the contracting states, and a comparison of how the disclaimer is working in the area of plants compared to other areas – apparently the disclaimer is a widely used tool that works well in other sectors but only because the terms are well defined, in contrast to “essentially biological process”

·         DE called for active monitoring of the issue, and for an evidence-based approach based on the results of the monitoring.

·         CZ and BE supported Germany’s call for monitoring.

·         NL and FR said random mutagenesis is a technical process and therefore patentable, DK said it didn’t have any problems with this topic

·         NL, FR, DK and CH also strongly opposed further clarification of “essentially biological process”. CH said it wasn’t the role of the legislator to clarify in detail every term

·         The EPA concluded that it wants to continue the debate but also wait for cases examined by the new rules so there can be an evidence-based approach. The issue won’t be on the agenda of the Admin Council in December.

 

In terms of next steps from Austria:

·         The German Patent Office asked for a meeting (probably next week) with the Austrians to discuss next steps and understand the Austrian critique on the disclaimer.

·         The Austrians are very motivated to keep the discussion going – the Minister may still write to selected other Ministers – but they see limited scope to do this without further cases / events to respond to.

 

My thoughts:

·         Based on the above, I am not sure that to call for a moratorium is the right way to go. We should try to keep the pressure up other ways, but it sounds like ultimately we will need patents on random mutagenesis assessed in line with rule 28(2) to really close this issue.

·         It is roughly four against four in the Administrative Council. We should continue our discussions with other countries to get more on the side of DE, AT, IT and NO – and seek an ongoing dialogue with NO and IT?

·         We will have to really make use of the open mutagenesis cases (barley, salad?) to push home why these patents are problematic, even though these ones will be assessed via the old rules

·         Pushing for further changes to define essentially biological processes in national law seems to still make sense, as a way to keep the pressure on the issue in the meantime. It would be great if we could e.g. have a joint initiative from AT, DE, IT when they implement the UPC.

·         Is there some other way we could try to expose the different legal interpretations on random mutagenesis to create problems for the EPA, e.g. in a case before a national court?

 

Best

Katherine

 

Katherine Dolan

ARCHE NOAH Leitung Politik / Head of Policy

+43 (0)676 557 4408

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www.arche-noah.at

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