Dear Christoph,
Thanks for sharing these documents and your analysis. I only read the paragraphs you mentioned as relevant.
Our current strategy falls and stands on the argument that random mutagenesis does not itself introduce or modify traits, but rather leads only to more genetic variation and further breeding steps are generally necessary afterwards to introduce/modify a trait. I wonder if there is something else we can do to really make clear this distinction to the EPO and the national representatives? E.g. providing scientific literature or get some plant breeders to sign a short common statement?
Regarding para 31: It is not clear to me that the report is referring to G3/19, but I read it rather as a direct reference to G2/07 and G1/08, but perhaps I misunderstood also your comment.
In terms of the general strategy, I agree it is very difficult know to judge whether following our current approach can be successful, or whether the current documents show the EPO is now fully set in its way of thinking. The discussion with the Vice-President in early March will probably be key to making this judgement. But in my view we should make clear in the report that adjusting the interpretation of G2/07 and G1/08 is the "easy way out". Otherwise a change to the law will be necessary and they will be stuck with these discussions for years. Adjusting the interpretation of G2/07 and G1/08 also has the benefit that they will not have to come up with any new definitions, so the concerns they raise about legal certainty in the document from 2017 are not so relevant.
To finish on a good note, it is great to see a success on cells. Another small step forward!
Thanks, Katherine
-----Ursprüngliche Nachricht----- Von: Npos_2018 [mailto:npos_2018-bounces@testbiotech.de] Im Auftrag von Christoph Then Gesendet: Mittwoch, 3. Februar 2021 12:55 An: npos_2018@testbiotech.de Betreff: [Npos_2018] another highly relevant document
Dear all
this the follow up to my previous mail.
it concerns a document prepared for patent law committee last year (CA/PL 4/20, see attached in German and English).
some findings from quick reading:
paras 28-32 deal with random mutations.
our analysis is mentioned (however, again no difference is made between trait and and any genetic alterations).
its is confirmed that patent on random mutations get granted.
To me the content of Para 31 was new: It is stated that G3/19 is confirming the need for patents on radiated plants (however radiation is definitely not the method you will use to directly derive to a new trait). This means, we have to take into account that G3/19 adds to the documents with presenting wrong interpretations of G2/07 and G1/08. This makes our standing more complicated.
In para 35-37 it seems they agree with us that living cells are not patentable if derived from relevant plants or animals. thus this problem seems to be solved to some extent: To my understanding this document is sufficient to clarify the issue which was confused by the former President. We might take as a success.
In Para 38-42 it is announced that staying for 310 patent applications, 10 oppositions and 18 appeals are lifted.
Summary: We should continue to explain the difference between traits and other genetic changes (which need crossing and selection). Since this difference was not considered so far, it might still be relevant for future interpretation. A lot of work still to do.
We might spend less emphasis on patentability of cells.
We have to continue to work on scope of patents (the disclaimer solution is also mentioned in this document, para 26/27 but without need for further discussion).
I will continue reading and maybe send a third document.
cheers
Christoph