Dear Christoph,

Thanks for the documents.

A couple of comments on the patent/opposition:

I can't see anywhere in the patent that KWS describe how they actually established that the QTL they describe leads to improved digestibility. Are they not required to do that as part of disclosing the "invention" in the patent?
In relation to claim 2, you could also add a reference to the G2/07 decision with regard to the use of markers?
Could we also refer to claim 13 under Article 52? The claim covers material/feed from plants that were identified or identifiable using claims 1 or 2. It is absurd for KWS to argue that producing silage from plants that could simply in theory be identified using their screening process is new and inventive.

What date are you planning to submit the opposition?

Best,

Katherine

-----Ursprüngliche Nachricht-----
Von: Npos_2018 <npos_2018-bounces@testbiotech.de> Im Auftrag von Christoph Then
Gesendet: Dienstag, 7. Februar 2023 10:30
An: npos_2018@testbiotech.de
Betreff: [Npos_2018] first draft opposition against KWS maize (sorry, only in German)

Dear all,

please see the first draft for our opposition against the KWS maize patent.

The opposition is backed by additional documents (in English) which explain the history and impact of EU Directive 98/44 (attached, I guess I will work on them again, maybe fuse them to one document).

In short the opposition says: all the exemptions from the prohibitions under Art. 53 b are only relevant for genetically engineered plants. For other plants, the prohibitions of Art 53 (b) fully apply.

This is a new legal approach for Art 53 (b) we developed for the Carlsberg appeal (which was also checked by patent lawyer).

In preparing the opposition, my impression is that Claim 10 and 11 also comprise the plants as selected in claim 1 and 2. This would mean, this claim covers plants that were detected in nature. Therefore, I added Art 52 (EPC).

happy to get your comments. we have to file mid of March

Christoph

PS I had some short exchange with KWS about further talks. My impression is that the company is not interested. We may consider a public activity to hand over our opposition in Einbeck. what do you think?