Fwd: Draft letter to AC and welcome to Gudula

20 May 2020


      see attached G1/08 (should be more or less identical to G2/07)
-------- Weitergeleitete Nachricht --------
Betreff: 	AW: [Npos_2018] Draft letter to AC and welcome to Gudula
Datum: 	Wed, 20 May 2020 11:42:01 +0000
Von: 	ARCHE NOAH Katherine Dolan katherine.dolan@arche-noah.at
An: 	Christoph Then info@no-patents-on-seeds.org
Hi Christoph
I am getting there but could you send me the opinion on G2/07 and G1/08
or  the link to it? I can’t find it on the EPO homepage.
Thanks
Katherine
*Von:*Npos_2018 [mailto:npos_2018-bounces@testbiotech.de] *Im Auftrag
von *Christoph Then
*Gesendet:* Mittwoch, 20. Mai 2020 09:38
*An:* npos_2018@testbiotech.de
*Betreff:* Re: [Npos_2018] Draft letter to AC and welcome to Gudula
Hi Katherine
welcome. please see short comments below. Your question are very helpful.
Lets prepare for phone conference next week.
I think we can sort it out.
Cheers
Christoph
Am 19.05.20 um 21:55 schrieb ARCHE NOAH Katherine Dolan:
Hi Christoph,
Thanks for this explanation, which makes some things clearer but
    also throws up some questions (I basically need some more
    information on the points you make – I have looked at the cases you
    refer to but can’t quite follow your logic, particularly on how we
    exclude random mutations from patentability by the relying on case
    law).
...
/on the case law: I only refer to G1/08 (and G2/07) - I hope I did not
mix up the numbers of the decisions. If you read the headnotes (as
quoted in G3/19) point 1 and 2 are very clear. Point 3 is not so clear.
But leaves room for our interpretation (please be aware the decision is
stating direct insertion of a TRAIT. Random mutation, typically, is not
enough to generate a defined TRAIT. see may explanation in the condensed
overview) /
/point 4 reads rather problematic. It seems they pick up all of our
arguments and says they are not relevant. Further problem: in the text,
they also refer to irridation as part of a historical explanation. /
/But you need to read the whole decision to find out, how to interpret.
By doing so, at the end, you will find the quote I inserted in may
condensed analysis. I think this quote is in line with the EU Commission
statement. It is in line with our interpretation. and it is binding. It
solves the problems and uncertainties as created by point 3 and 4.
However, looking to the examiners decision making, this legal
understanding so far is not reflected on the level of examination. This
is astonishing. If we raise our demand as suggested, we can sort out
these contradictions. Or, in case, we go for further changes of Rules
and Laws. /
I would be very keen to have a call (this week?) to discuss some of the
details and the next steps so we have a common understanding before the
letter is finalised.
/It looks like we have phone conference next week on 26. we can discuss.
I also will do further work on the text. So we can manage to send it off
next week. we might double check with the schedule of meetings at the
EPO, to be right in time. /
On the bigger / more strategic issues:
·         I am not a fan of the disclaimer as it is not a binding,
    transparency rule and still puts the onus on civil society to be
    alert and check it is being applied fully. But if we can really
    achieve what we want on the other two points in an easy way, I guess
    we could live with it, and see how it works in the next year. If it
    doesn’t work e.g. on the new GMOs we would anyway have to get active
    again.
/I do not mind, to raise stronger demands (like no absolute product
protection under Art 53 b) - we will see if it flies. /
·         Regarding the process: You are suggesting that the Admin
    Council adopts a text that basically replaces the proposal made by
    the President in 2017 and which will then be reflected in the
    examination guidelines? Can we check that the Admin Council is able
    to do this legally? I also wonder strategically if it makes sense to
    straight away propose this “light” option. On the one hand, I see
    what you say that they are more likely to be interested in an easy
    solution. But on the other hand it will be difficult to us to demand
    a change in the implementing regulations at a later stage if we do
    not do so now. Again, it is probably better to discuss this together
    on a call.
/The idea on the process: for each decision to change rules or laws,
there are some preparatory documents. These documents are relevant for
the interpretation of the decision, they are not binding law as such.
But they are binding in case of questions of interpretation. We want the
AC to add another preparatory document. Normally this is no problem.
And, important to know: The text is already in the examination guidance.
I think some further clarification might be needed. But this can be done
by the EPO, it is not in the remit of the AC. We just pave the way to
get the right decisions on the level of the EPO. Anyway: the text which
is legally binding is G1/08. Please read carefully. I might be wrong in
my interpretation. It we have to prepare a argumentation which is in
contradiction to G1/08, this will be hard task (I already started on it
- it might work, but for the moement, I am not convinced that it will work)/
On a separate note the Austrian Ministry called for a change to the
    Convention in her press release (her team don’t understand the issue
    yet). I have asked for a meeting but I will hold off on following up
    until we have agreed on our demands internally:
    https://www.ots.at/presseaussendung/OTS_20200516_OTS0001/keine-patente-auf-l...
Thanks
Katherine
-----Ursprüngliche Nachricht-----
    Von: Npos_2018 [mailto:npos_2018-bounces@testbiotech.de] Im Auftrag
    von Christoph Then
    Gesendet: Dienstag, 19. Mai 2020 17:50
    An: npos_2018@testbiotech.de mailto:npos_2018@testbiotech.de
    Betreff: Re: [Npos_2018] Draft letter to AC and welcome to Gudula
Dear Katherine
thanks for your comments. I agree that this letter is somehow a
    change in our communication towards the Members of the AC. But it is
    not a change in our goals!
I have to admit, when I started to work on this letter, I already
    had much more arguments and reasoning written down in a longer draft
    version, before I finally again studied the Decision G1/08 and was
    happy to find there is a new, smart and more precise way to move the
    AC. But maybe I should explain. We need a common understanding. So
    thanks for your question.
In our original response to the 2017 decision we were not fully
    aware of the obvious contradiction between the President's document
    and the Decision in G2/07 and G1/08. Therefore, we did not point out
    these contradictions. But now we should use it. My conclusion: Our
    position is much stronger than we thought. Also within the current
    jurisprudence of the EPO, they can not just leave it with this
    incorrect interpretation of the President.
We should be aware that the decision of G1/07 is  already introduced
    into the examination Guidelines (at least partially). I always was
    wondering about the strong wording in the Guidelines about
    fundamental differences between GE and conventional breeding. But I
    was too stupid and not aware that this is the wording from G1/08. I
    think at the level of the Technical Board, we might have been made
    aware that this wording is already quite effective (but this is just
    some guessing).
Being aware of the facts and findings as summarized, I would like to
    keep our demand as much as streamlined and easy as possible, to move
    the delegates to take initiative. Also after our talks with the
    German ministry, I am sure, we will get most interest and support in
    our demands if we can show that they can be fulfilled it without
    changing the Rules or the text of the EPC. So I would like to follow
    this path.
Would it become legally binding if the AC would adopt the text as
    proposed? In itself, it would not have a legally binding effect such
    as a new Rule or change of law. But this is not necessary: We just
    have to make sure that there is no longer any contradiction between
    the decision of the AC and (what we think is) the correct
    interpretation of Rule 28 (2). If my understanding is correct, the
    desired legal binding effect will simply result from G1/08 and not
    from the new decision of the AC.
In short: my understanding is that the problem (with the definition)
    is solved as soon as the AC agrees with us that the text of the
    President is an incorrect interpretation. If my analysis is not
    correct, the AC will not follow it and we have to raise stronger
    demands anyway.
Similarly, the demand that all products and materials needed for
    breeding are excluded does not seem to by a major problem. I think
    this demand is supported by all contracting states. There is only a
    contradiction introduced by the text of former President: It says, 
    that cells still are still patentable. If we get rid to this text,
    the problem should also disappear.
On the scope of patents, I guess we will have to live with the
    disclaimer. I see no way to convince the AC to come up with stronger
    initiatives. But if the proposed text would be adopted, it could
    support our position. I am not so happy with this situation, but do
    not think we can go further on the basis of G3/19.
As indicated above, after the decision of the Enlarged Board, the
    interest of the European governments to get active on this topic
    might by minor. But nevertheless, I am (for the first time)
    optimistic we can still reach our goals. Let us go for it.
In addition, what we still could add to the draft letter, is a a
    change in national law (definition of essentially biological
    processes and scope of patents). I missed that to add in my draft,
    but I would like to add.
If needed we also can have a chat on the telephone (or zoom conference).
I think this is a huge opportunity and we should use it asap. But we
    also should have common understanding of the situation.
Cheers
Christoph
Am 19.05.20 um 15:44 schrieb ARCHE NOAH Katherine Dolan:
> Dear Christoph,
>
> Thanks for the draft. I have a couple of questions and based on
    your reply I would make some more detailed comments on the letter:
>
> 1) In my view we are too complementary about the 2017 decision. I
    am conscious we should show that we appreciate their efforts, but
    they did after all ignore our warnings that the proposal didn't go
    far enough. In Austria we also have the specific situation that we
    heavily criticised the proposal in 2017 as formally establishing
    loopholes that were previously informal
    (https://www.ots.at/presseaussendung/OTS_20170626_OTS0008/arche-noah-europaei...)
    and it was this criticism that got Austrian government to vote
    against it. So it is awkward for us to be too positive now -
    particularly as we don't want to expect less of the current minister
    than the minister in 2017,  especially as she is a green.
>
> My question - is it ok for you in general if we are less
    complementary about the 2017 decision or is this very important for
    you?
>
> 2)
>
> You call on the AC to "adopt and publish a text for clarification".
    Do you know what legal binding form this can take? Why are we not
    aiming for a further change in the Implementing Regulations?
>
> Thanks
> Katherine
>
> -----Ursprüngliche Nachricht-----
> Von: Npos_2018 [mailto:npos_2018-bounces@testbiotech.de] Im Auftrag
> von Christoph Then
> Gesendet: Dienstag, 19. Mai 2020 13:26
> An: npos_2018@testbiotech.de mailto:npos_2018@testbiotech.de
> Betreff: [Npos_2018] Draft letter to AC and welcome to Gudula
>
> Dear all
>
>
> welcome to Gudula from Gene ethical Network which replaces Judith
    which is on parental leave!
>
> please see attached the draft letter to be sent to the Member
    States of the EPO asap. I also will prepare a German version.
>
> I think, after further reading of G2/07 and G1/08, there are very
    good chances to sort out the issue the one way or the other. The
    wording seems to be stronger than I remembered. I included a
    condensed legal overview which is adding some new elements (after
    all discussions ...).
>
> Please come back with your comments till Thursday.
>
>
> Cheers
>
> Christoph
>
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