Dear all,

today we had the meeting with the EPO. In short: Nothing really new. Top experts, but minor outcome. 😉

we sent them some questions before the meeting and did not get many answers (please for the moment, keep this for internal use only):

(1)      are there further granted patents or decisions 'for grant intended'  under Rule 28 (2) besides EP3560330?

I do not think we received a clear answer. They emphasized that they now have to grant toe old cases, without disclaimers

(2)     the contracting states asked the EPO to give regular updates on the implementation of rule 28 (2) and G3/19. How is this monitored? Is there a report? Is the report public?

they said, the reports, as soon as finalized, are on the website of the EPO.

(3)  why is the EPO of the opinion that random mutations such as caused by UV radiation (sunlight) should be considered as resulting from a technical process?

Answer: We discussed this in the last meeting

(4)   can patents be granted on plant-genes and their usage if occurring in nature?

no answer

(5)   if so, which role will play the disclaimer solution?

no answer. However, they explained that the method for screening plants is not a a method for production of plants. Only processes for production of plants are excluded under Art 53 b- therefore for the screening, no disclaimer is possible.

(6)   the member states asked the EPO to provide a solution so that conventional breeders enjoy freedom to operate. Does the EPO consider this goal to be achieved?

we should ask the contracting states. However, the EPO is not aware of any problems.

(7)      can we expect a conference of ministers to be organised within next year (Art 4a, EPC)? Why has never been a Conference of Ministers taken place so far?

This will depend on the contracting states. They see no move in this direction. So far, there was no interest. It is not up to the EPO to invite for such a meeting 8as ist is the case with diplomatic conferences), but of the contracting states.

After the meeting we had a short debriefing with most of the participants from our side. My summary (others might add comments):

(1) In future patents, the EPO might include a disclaimer regarding plants that inherit genes which were introduced by means of essentially biological processes (as they now did in KWS). However, there is still the problem with the definition of essentially biological.

(2) the EPO will not add a disclaimer to other usages of plant genes (such as methods for screening), because this is not regulated under Art 53 (b).

(3) If they continue to grant these patents like KWS, conventional breeding will be impacted from two sides: The claims on conventionally bred plants (many companies will pretend they used random mutagenesis to produce their varieties) and the claims on screening for plants with the relevant genes. These patents, in combination of claims, will be highly effective in blocking traditional breeding (not matter if applied or granted).

(4) If we get rid of the claims on conventionally bred plants (not more patents on random mutations),  breeders can use the varieties for further breeding also without screening. Under these conditions, patents which 'only' claim screening of the plants may then be of minor relevance. Thus our priority should stay with the definition of essentially biological processes.

We agreed it would be a good idea to file opposition against KWS. Even, if we can not win, it will help us to set a political agenda, also allowing us also to ask for the responsibility of the company KWS (I think, we should ask for a meeting with the company very soon).

However, we were not sure if we should oppose further patents granted without rule 28(2). Especially in the case of the Nunhems Tomato with prolonged shelf life (EP 2900817) which has a deadline in August, we were hesitant. We would be happy to receive for comments.

Next step are the letters to the national governments. At least from the meeting with the EPO, no information came up to change our plans.

Cheers

Christoph