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.
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.
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 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