Dear all

yesterday, Annemarie, Georg and me had an interesting and very constructive meeting with the Minister of Justice in Berlin. It was organised by a Member of German Parliament. Please keep confidential.

(1) There seems to a plan which is already discussed and even agreed (?) with all other governments how to react to the EBoA in case, if the answer is NO: They want first to go to the EU to re-open the Directive 98/44 to sort out this issue. Then they will take a decision in the Administrative Council to adopt the EPC (change it,not only the rules) accordingly (see Art 33 (1) b)). It seems this plan was discussed in the AC just in their meeting after the decision of the Board of Appeal in Dec 2018.

We commented that this process suffers from major uncertainties and can be completely sacked by any parliament decision in any contraction state. In result, after two years or after a longer period of time, we would start from Zero. I mentioned that we discussed it with the president of the AC (Kratochvil) and discovered several weaknesses.

The ministry answered that they think a conference of the contracting parties would also take a long time to prepare.

We answered we are happy if they succeed, but we would be surprised if the EU could provide a solution and that we still recommend to call for a conference as soon as possible. I do not think they will follow us at this stage.

so point (1) was not very successful. But at least there is no doubt that they will get active if the verdict of the EBoA will contradict the decision of the AC. It would be interesting to get some insight in plans from Austrian government (or others) on their strategy.

(2) In case the EBoA says YES, they said, they think legal clarity is achieved. Random mutagenesis should then be sorted out by further decision making at the EPO.

We mentioned the decision of the AC, based on the preparatory text of the EPO President, might prevent the EPO from taking the right decisions. We mentioned that, without further clarification, freedom to operate can not be reached for conventional breeding. we explained that random processes to increase genetic diversity, followed by crossing and selection are not inventive. We mentioned Carlsberg and examination reports from the EPO made after June 2017 and before Dec 2018.

The round seemed to agree that random processes should be excluded. They seemed to agree that it should be tried to sort it out by legislation, not just by case law (as proposed). The ministry wants to check the possibility to first get clarification in national patent law.

we were asked to present cases of patents granted or patents being under examination, to see how the decision of the AC was applied before Dec 2018. We answered to do so.

so point (2) was more or less in agreement with our proposals (but with some legal expert of the ministry still trying to counteract)

Follow up:

the ministry will monitor the decision of the EBoA which they said it might come up in June (without any certainty).

we will present a list of examination reports and granted patents which show how the EPO was dealing with the AC decision before Dec 2018. I will discuss with Ruth.

we will keep in constructive dialogue with the ministry.

Let me know if there are any questions/ comments. We also might discuss on our next phone conference.

please see attached the revised version of the PR (in en and de) for the case the EBoA says YES, I am still working on the other one.

so lets keep pushing, it might get pretty exciting again ...

Christoph