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    EPO Response: No Tricks On Patents On Seeds And Plants

    Published on 5 April 2012 @ 8:45 pm

    By , Intellectual Property Watch

    In response to a report published on 3 April by civil society group No Patent on Seeds alleging that industry and patent examiners in the European Patent Office are finding legal loopholes to grant patents on seeds and plants, an EPO spokesperson told Intellectual Property Watch the patent office does not “apply tricks” to grant patents.

    The report stated that by the end of 2011 “nearly 2000 patents on plants” were granted by the EPO, and called for the European Parliament and the European Commission to step in (IPW, Patent Policy, 4 April 2012).

    According to Rainer Osterwalder, deputy spokesperson for the EPO, the patent office “follows a clear and transparent procedure which is laid down in the applicable patent law and also in the Examination Guidelines, which are all accessible on the website.”

    The EPO, he told Intellectual Property Watch, has issued a recent publication providing facts and statistics on the “melon patent” case (http://www.epo.org/news-issues/issues/melon.html) relating to melon plants resistant to a virus. The patent application was filed with the EPO in 2006, the grant of the patent became effective on 4 May 2011 and is owned by Monsanto Invest B.V., according to the document.

    The EPO has received two notices of opposition on this patent, one from a subsidiary of Bayer CropScience, on technical grounds, and the other from No Patents on Seeds, concerned over the use of conventional breeding methods.

    It appears that No Patent on Seeds is referring to the EC Directive, Article 4.1 in their report, which Osterwalder said, “states that no patents shall be granted for plant and animal varieties. This is taken from the European Patent Convention, and is strictly applied by the EPO in its practice.”

    However, he added, the NGO’s report “fails to point to the subsequent article 4.2, which [...] states that inventions related to plants and animals may be patentable as long as the invention concerned is not restricted to individual plant or animal varieties.”

    This means, Osterwalder said, that “the EPO needs to grant a patent for a plant invention as long as carrying out the invention is not restricted to a single variety, and all other patentability criteria are fulfilled. Such patents may encompass plant varieties as long as these are not specifically claimed. As a consequence of the legal provisions and the applicable case law by which the EPO is bound, the grant rate for patents in biotechnology is significantly lower than in all other fields (28% of grants [versus] 47% overall).”

    “The law and guidelines are equally applicable to all patent applications in all technical fields in order to establish legal certainty in the innovation process,” he added. “There is no legal basis for treating different technologies differently from each other: Unless exempted specifically from patentability by the law and case law, all technologies are to be treated the same, and a patent must be issued.”

    Since the so-called “broccoli” patent was granted (IPW, Patent Policy, 27 October 2011), there has been much discussion and “it has become political,” Osterwalder said, as government have also “started to issue statements concerning plant patents. While some of the points raised in the debate concern the political desirability of such patents, the EPO is solely bound by its legal basis, and expects further clarification from the case law.”

    Catherine Saez may be reached at info@ip-watch.ch.

     

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    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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