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://cpvo.europa.eu/en/news-and-events/articles/should-hybrids-be-conside...
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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