Dear all
just a short update on the ongoing preparation for the hearing on 10 of May.
(1) on the legal side, this case may becoming highly interesting. It its last written statement, the EPO wrote:
„It will be discussed whether any particular technical effect can be associated with the claimed products. If the number of plants can be screened in manner which is not an undue burden and can adequately reproduced (...), OD is of the preliminary opinion that provision of an arbitrary plant with mutations in known genes not associated with any particular effect is obvious and contravenes Art 56 EPC.“
This could mean, Art 56 could become decisive not only for this case, but also for other patents:
As I understand the question, the Opposition Division (OD) of the EPO may come to the conclusions that non-targeted mutagenesis (in general) is not technical nor inventive because it only delivers large number of plants with lots of mutations which have to undergo screening to find the technical 'solution'.
Especially, if the gene which is expected for potential mutations is known before (as it is the case with Carlsberg and many other cases) such a process is obvious and not inventive.
Finally, this is especially relevant for cases in which no new genetic information is generated (as it is the case with Carlsberg and many other cases), but just the normal genetic function is disabled (knock-down effect)
From a legal point, this is a nice move, many of our arguments (which so fare were only tested under Art 53 (b) can be addressed within this context.
I am just working on a submission by No Patents on Seeds which has to be delivered till 10 of March. Because I am working with patent attorney in Germany, the submission will be in German. Let me if you want to read the first draft.
(2) For public activities: This is a real joint opposition, involving organisations (such as WeMove) and some individuals. In addition, there is a second opposition by Austrian brewers. We have to inform an alert them.
Furthermore, we should consider a media conference with the free brewers and Austrian brewers (online?). We can present latest findings on beer patents or the new report.
Since the hearing is virtual, it is not convincing to hold a organize a public activity in front of the EPO, but we also should consider how to visualize our campaign (existing material, new material?)
I think, we should use the annual meeting also for some exchange on this hearing.
Cheers
Christoph