According to Dutch Minister, EPO is prepared to start legal proceedings on plant patents

During the general consultation in Parliament, the Minister of Agriculture, Mrs Schouten, responded to the decision of the Board of Appeal of the European Patent Office in T 1063/18. We blogged about this here and here before.

The decision regards the interpretation of Article 53 (b) EPC which forbids patents for 'essentially biological processes for the production of plants or animals' (essential biological processes for the production of plants or animals). According to Rule 28 (2) EPC this exception includes the plants or animals that are exclusively obtained by means of an essentially biological process (plants or animals exclusively obtained by means of an essential biological process).

In the surprising judgment T 1063/18, a Board of Appeal decided, among other things, that Rule 28 (2) is invalid. The consequence of this is that patents on plants exclusively obtained through an essential biological process are sometimes possible. An interpretative declaration from the European Commission was not taken into consideration because it does not have 'legal authority'.

The minister finds the ruling disappointing. According to Minister Schouten: "We believe that patents on classical plant breeding should not be possible. I support the interpretative declaration from the European Commission, which makes it clear that when the directive was drafted it was never the intention of the European legislator that products of traditional breeding are patentable. "

The minister is going to ask whether other member states want to give their opinion on the ruling as well, both within the EU and within the EPO. In addition, there is the hope that the President of the EPO will initiate proceedings on this issue at the EPO's Enlarged Chamber of Appeal. "The EPO has already indicated its willingness to do so," according to the minister.

In addition, the Court of Justice of the European Union could be asked via a preliminary question to comment on the validity of the interpretative declaration.

Picture by Anthony (InspiredImages) via PixaBay under the Pixabay License. 

EPO publishes annual report for 2018

EPO has published figures on European patents and patent applications in 2018 (pdf). The Netherlands stands out in a few places. In the list 'Ratio per million inhabitants based on European patent applications', the Netherlands is in second place, immediately after Switzerland. In the Netherlands, 416 applications were submitted per million inhabitants. In absolute numbers, the Netherlands is in eighth place, after the US, Germany, Japan, France, China, Switzerland and Korea.

The fact that Switzerland and the Netherlands are doing relatively well does not necessarily mean that a lot of innovative research is taking place in those countries. There is no obligation that an application for a European patent be filed from the country where the research was done.

The company with the most submissions was Siemens, followed by Huawei, Samsung, LG, United Technologies and Royal Philips. Large companies together accounted for 71% of applications.

Most patent applications were for medical technology, followed by digital communication and computer technology.

Good news for seed and plant breeding companies ?

Following a report about the European Biotech Directive (EU 98/44), the European Commission has adopted three recommendations, including:
=> it was always the intention (of the Directive) to exclude the patentability of  plants, vegetables, fruits etc. that are obtained by biological processes.

The European Patent Office (EPO) came to the opposite conclusion in how the Directive was to be interpreted - see G2/12 and G2/13.

It is unclear how the EPO will react to this - recommendations of the European Commission are not legally binding on the EPO. However, these arguments will certainly be used in any future invalidation proceedings.

We will be attending the Dutch Life Sciences Conference in Leiden on 24 Nov 2016

DeltaPatents has a stand (number 4) at the Dutch Life Sciences Conference in the ECC Leiden (next to the Holiday Inn). It is an event voor biotech, high-tech en med-tech companies to meet each other, find investors and also to learn something. Tanja la Cour, Romano Beitsma, Pete Pollard & Jolanda Pudelko will be present, so please drop by with your questions on patents, trade secrets or trade marks. Or visit us anytime at our office in the Poortgebouw of the Leiden Bio Science Park.

Presentation on "The Strategic Use of Patents" at the EPO in Munich

On 20th October 2016, one of our patent attorneys, Pete Pollard, will give a presentation on The Strategic Use of Patents to 60-80 patent examiners from the European Patent Office (EPO) in Munich.
By covering what users of the EPC and PCT patent systems want to accomplish and how they view a granted patent, Pete will try to explain the "strange" behavior frequently witnessed by examiners in their dealings with applicants.
We are always happy to do this - engaging with examiners whenever possible improves mutual understanding, and promotes co-operation when handling future patent cases.
   

DeltaPatents succesfully defends FEI's patent in opposition & appeal - T1123/10

Congratulations to our Opposition and Appeal section for successfully maintaining FEI's European patent EP1394834 following lengthy opposition and appeal proceedings.
The patent was granted in 2007 for a very gentle method of milling a biological sample using sublimation. An opposition was filed later the same year at the European Patent Office (EPO), requesting a complete revocation.
After 3 years, the Opposition Division agreed that the patent was valid. However, the opponent filed appeal T1123/10.
After an oral hearing in July 2016, the Board of Appeal confirmed that the decision was correct and the patent was maintained as granted.
FEI was represented in the written and oral proceedings by Pete Pollard, who has many years of experience in both oppositions and appeals. The other members of our Opposition and Appeal section are Sander van Rijnswou, Tanja la Cour Hoekstra, Karel Riem, Roel van Woudenberg and Jelle Hoekstra. Some of them are also tutors helping EQE candidates pass the C (Opposition) and D (Legal) papers.
P.S. The EPO is currently taking steps to speed up the opposition process to avoid such long delays in the future.

DeltaPatents at the Dutch RF Conference

As sponsor of the Dutch RF Conference, we would like to welcome you on Wednesday 23 November 2016 at Novio Tech Campus Nijmegen.

The target audience of this event consists of Belgian and Dutch high tech professionals and companies involved in high-end RF development and RF applications, see also http://dutchrf.com

Please contact us if you are interested in a reduction of the registration fee. Send an email to:  mail@deltapatents.com