dear all
so far I was not aware of the document from September 2020 from EPO which can be seen as a reaction to our interpretation of G1/08 and G2/07 (see attached).
It argues in more detail why the EPO thinks that random mutations are regarded patentable inventions, while naturally occurring mutations have to be excluded. I think the document shows that we have to argue in more detail on irradiation and it should be taken into account in our own argumentation / oppositions / political demands on national laws. It is strange that in our talks with the EPO, this document was not mentioned (it also might have escaped my attention). We just received it now via the German brewers organisation which had a meeting with the experts from Luxembourg.
As far as I can see, document does not invalidate our arguments regarding the headnote of the decision G1/08 and G2/07, as presented in the conference at the German ministry of justice (random mutations typically does not result directly in a trait, but deserves further crossing and selection), but it may weaken our position if we do not address it correctly. On the other hand, the document shows, that the EPO is well aware of the problems we raised. I would expect that also the EPO sees the need for further clarification, especially if Member States raise the demand.
In addition, the document also refers to the disclaimer (we discussed). It confirms that native traits might be excluded from patentability. Very short again on this topic: Is this helpful? In the case of Carlsberg it is useless. The mutations were generated at random, but not found in native traits. More interesting: In the case of the bushy melon, the melon plant as found in the home garden, is not claimed as invention. However, further breeding without changing the decisive characteristics, turns it into an invention. Therefore, the varieties brought to the market by BASF can not be used by other breeders for developing new varieties. But the disclaimer maybe helpful, if the breeder would have access to the native trait.
In conclusion, the disclaimer might bring some benefits in some cases, but does not solve the problem. If we talk about the scope of patents from New GE (CRISPR) to be extended to random mutations and conventional breeding, generally, the disclaimer solution does seem to be crucial. Anyway, currently it is not applied and its future role is vague, as it based on case by case awareness of the examiners.
So sorry for these technical details. I think we should be aware off, but, at this stage, it should not take our whole attention. Much more we should try to build up more public / political pressure to move ahead the overall process.
Cheers
Christoph