dear Francois
thanks for your thoughts.
Since patent laywers were not convinced on Art 53 a I did not explore this in writing. However, as you can see in our draft letter I reserve the right to talk about all arguments in the heraing and will try to integrate.
so let us see how it works,
Christoph
Am 03.09.20 um 15:00 schrieb francois.meienberg@prospecierara.ch:
Dear All
Just regading Art. 53a and the Biopiracy issue.
I was in touch with the Indian Government when we filed the oppositon. Carla should still have their contacts. -> I think it would be very useful to again contact the Government and ask them for another letter (telling them that their first letter came to late). I will not be able to do it. And it would be good to have some media covereage in India in advance (maybe through Vandana).
I suggest following Argument on 53a. If the invention has been made on an illegal basis (using the genetic resource in contradiction with the Indian law) and therefore is contrary to morality and ordre public - it is evident that all future commercial exploitation, which are based on the invention, are also against ordre public (Receiving/using stolen property - in this case illegally aquired IPRs - is a crime in itself). The preliminary opinion argues that there is no problem because "such exploitation would not require accessing genetic resources in a provider country" -> this is not a valid argument as in the indian law the trigger for the Prior Informed Consent ("previous approval" in the indian law) - is not the access to the genetic resource in the provider country, but the application for an intellectual property right, this means the utilization of the genetic resource.
-> Therefore the question if the patent holder has acted in line with ordre public is an essential question to answer if the future commercial application is contrary to ordre public or not. -> Because the first question needs to be answered with No - the second question needs to be answered with YES - and therefore Art. 53 a applies ...
This is just one thought - need to be drafted in nice words.
Best François
-----Ursprüngliche Nachricht----- Von: Npos_2018 npos_2018-bounces@testbiotech.de Im Auftrag von Christoph Then Gesendet: Donnerstag, 3. September 2020 14:11 An: npos_2018@testbiotech.de Betreff: Re: [Npos_2018] heads up for the Melon Case
Thanks a lot! very useful!
please note that inbred lines can be considered as varieties according to the EPC (Rule 26), even in case these are not varieties in the meaning of PVP system. Similar criteria, but EPC is broader (as also confirmed in previous cases).
Am 03.09.20 um 13:58 schrieb Bram de Jonge:
Hi all,
I just checked with Bert Visser, former director of the Dutch genebank. The US genebank falls directly under USDA. It has always dispatched its accessions around the world to any public or private research entity, there seem to be no specific restrictions. This has also been the critique of countries like India, because the US gene bank holds so many accession from all over the world, it has been the biggest source of leakages for countries that aimed to control their biological material under the CBD/Nagoya. Since some years back, when the US joined the FAO Treaty, all its transfers are made under the Treaty's SMTA. I do not know the terms of the Budapest Treaty so it will still be worthwhile to have a closer look on this, but in case deposits at European gene banks have been accepted in the past as to fulfill EPC Article 83 than I think there will be little change that the reference to the US Gene bank is not considered sufficient as well.
Bert did not consider inbred lines a variety. I will check with Bart Kiewiet for his opinion.
The EU does not recognize the Indian ABS rules so there is little chance to get a win on that.
Best regards, Bram
-----Original Message----- From: Npos_2018 npos_2018-bounces@testbiotech.de On Behalf Of Christoph Then Sent: Thursday, 3 September 2020 12:35 To: npos_2018@testbiotech.de Subject: Re: [Npos_2018] heads up for the Melon Case
I think this an political issue without direct legal relevance, but great for public communication. Please be aware that for example Francois should be able to answer these questions rather quickly.
If there is time to spend for research, please also have a look on my questions regarding the gene banks.
Am 03.09.20 um 12:11 schrieb ARCHE NOAH Katherine Dolan:
Dear all,
Related to Nagoya: The Indian Biodiversity Act came into force (2002) before the patent application was submitted. As I understand it, the Nagoya Protocol and the relevant EU Regulation elaborate on how access and benefit sharing should work in practice, but the general principle of benefit sharing is already anchored in the CBD, and, in the case of India, implemented prior to the conclusion of the Nagoya Protocol. I don't know to what extent Monsanto is bound by these provisions, but it is something we could explore. (I have also asked Fulya to look at the public access and Nagoya protocol issues.)
It would be a great precedent if we could win on this point and have a good story to tell on bio-piracy, but if we lose the appeal it is probably more useful for our wider campaign...
Christoph - Could you send around the original letter from Navdanya that was attached to our opposition?
Best, Katherine
-----Ursprüngliche Nachricht----- Von: Npos_2018 [mailto:npos_2018-bounces@testbiotech.de] Im Auftrag von Christoph Then Gesendet: Donnerstag, 3. September 2020 11:31 An: npos_2018@testbiotech.de Betreff: Re: [Npos_2018] heads up for the Melon Case
Thanks Bram!
so you know the US Gene banks how it works etc and there is no difference to those under the Budapest treaty? we do not have to dig into much more? The US gene bank is not controlled by national or commercial restrictions?? I could imagine that the US Gene Bank is not under international governance, while the Budapest gene banks might be?
the question on QTLs I can not answer. I think this some technical detail, the EPO will prepare for their own decision making.
If you are interested to involve experts, no problem.
I have no contact to the Indian Officials. I guess it was Francois which organized this contact, if Oxfam has possibility to inform them, that would be great.
Am 03.09.20 um 10:19 schrieb Bram de Jonge:
Thanks Christoph,
I read the document and inserted my comments in capitals below. Best regards,
Bram
-----Original Message----- From: Npos_2018 npos_2018-bounces@testbiotech.de On Behalf Of Christoph Then Sent: Saturday, 15 August 2020 16:30 To: npos_2018@testbiotech.de Subject: [Npos_2018] heads up for the Melon Case
Dear all,
the Board of Appeal has forwarded the attached preliminary opinion on the Melon Case hearing (Monsanto) on 12 November 2020.
some findings in short:
There are new rules of procedure which will be applied (have to find and study it)
key question is, if the deposition of the material was in line with the request by law: The material was not deposited in gene bank under Budapest Treaty but just in US National Plant Germplasm Systems. The Board will examine if this deposit is an equivalent to a Gene bank under Budapest Treaty. I think this offers strong opportunity for us - please help with arguments, findings, you may have. UNFORTUNATELY, I CANNOT SEE MUCH DIFFERENCE BETWEEN A DEPOSIT TO A GENE BANK UNDER BUDAPEST TREATY AND THE REFERENCE/DEPOSIT IN THE US GENEBANK. BOTH SEEM EQUALLY (UN)AVAILABLE FOR THE PUBLIC TO ME. I WONDER WHETHER THE OTHER ISSUE, I.E. WHETHER THE MATERIAL IS MAINTAINED "SUCH THAT IT RELIABLY COMPROMISES THE REQUIRED QTL AND MARKER", POSSIBLY PROVIDE OPPORTUNITIES FOR COUNTER-ARGUMENTS?
The Board considers claim 3 to cover an inbred plant which has to be regarded as plant variety. This also seems quite interesting - this paragraph may brings some new clarity into the discussion about plant varieties. YES, VERY INTERESTING. SHALL I ASK BART KIEWIET FOR HIS VIEW ON THIS? HE IS GUEST LECTURER IN WAGENINGEN AND I CAN ASK HIM TO GIVE HIS LEGAL/ACADEMIC OPINION? (SEE HIS ARTICLE ON HYBRIDS: https://eur01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcp v o.europa.eu%2Fen%2Fnews-and-events%2Farticles%2Fshould-hybrids-be-c& a mp;data=02%7C01%7CBram.de.Jonge%40oxfamnovib.nl%7C88df38d6125a40f486 3 308d84ff5109c%7Cc42c6655bda0417590bab6e48cacd561%7C0%7C0%7C637347261 2 73302380&sdata=DLBIij9CAbJhHLOJwseLPObVkGHB3vQBWZqeuMONhRk%3D&am p ;reserved=0 onsidered-plant-varieties#:~:text=Confirmation%20that%20hybrids%20ar e % 20included,found%20in%20its%20article%209%20.&text=Varieties%20of%20 a l l%20botanical%20genera,of%20Community%20plant%20variety%20rights.%E2 % 8 0%9D
The Board does not want to apply Rule 28 (2) because of the date of the application (before June 2017) - this may be a strong element for our public communication.
The Board does not consider 53 (a) and Nagoya protocol to be an issue (we had some involvement from Vandana Shiva and the Indian government in this regard). Please, if you have, give your thoughts and comments on this angle. I will inform Vandana. I THINK THAT THE BOARD'S VIEW IS LEGALLY CORRECT (IN THE EU), GIVEN THE FACT THAT THE MATERIAL WAS COLLECTED IN THE 1960S AND THE PATENT IS FROM 2005. SHOULD WE ALSO INFORM THE INDIAN GOVERNMENT, I.E. THE NATIONAL BIODIVERSITY AUTHORITY THAT SENT IN THEIR LETTER (TOO LATE)?
I will try to get some feedback from Dolder and other patent lawyers - maybe I can convince them to represent us. we will see.
Cheers
Christoph
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