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4-Patents: EPO campaign



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Date:        11.02  23:56 Uhr
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BIO-IPR resource pointer
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AUTHOR: Christoph Then, "No Patents on Life!" Germany
TITLE: (appeal to pressure the European Patent Office to uphold its reading 
of the European Patent Convention regarding the exclusion of plant varieties 
from patentability)
DATE: February 1999
________________________________________________________


TO:		Interested organisations in Europe and all over the world
FROM: 	"No Patents on Life!" Germany
DATE: 	February 1999
RE: 		European Patent Convention


Dear all, 

The European Patent Office will give a final decision on the patentability 
of plants (and animals) in the next months. The "Enlarged Board of Appeal" 
which is the highest court-like institution of the EPO will rule out the 
Novartis case EP 448511. 

The question they will have to decide is (inter alia): 

"Does a claim which relates to plants but wherein specific plant varieties 
are not individually claimed ipso facto avoid the prohibition on patenting 
in Article 53 (b) EPC though it embraces pant varieties?"

The decision will have far reaching implications on the question of the 
patentability of plants and animals in Europe. In its former decision 
(T356/93) the "Technical Board of Appeal" (chamber below the "Enlarged Board 
of Appeal") has stated that plants can not be patented because of Article 53 
(b). This Article excludes plants or animal varieties from patentability.
 
The Technical Board of Appeal held in Plant Cells/PLANT GENETICS SYSTEMS
(T356/93) that a claim defining genetically modified plants having a 
distinct, stable genetic characteristic was not allowable under Art 53 (b) 
EPC if the claimed modification itself made the modified or transformed 
plant a 'plant variety'. 'Plant variety' was definied as 'plant grouping 
within a single botanical taxon of the lowest rank which, irrespective of 
whether it would be eligible for protection under the UPOV Convention, is 
characterized by at least one single transmissible characteristic 
distinguishing it from other plant groupings and which is sufficiently 
homogeneous and stable in its relevant characteristics'. In G03/95 the 
Enlarged Board of Appeal held that this decision did not conflict with 
previous decisions of the Technical Boards. Owing to the technologies used 
and the aims pursued by modern plant biotechnology, i.e. the production of 
new plant varieties, transgenic plants fall under Art. 53 (b) EPC and are, 
therefore, excluded from patentability. 

The decision T356/93 was upheld by the last ruling of the "Technical Board 
of Appeal" in 1997 (T1054/96). It is now to the "Enlarged Board of Appeal" 
to uphold or to reject the former decisions. 

The upcoming decision has to be seen before the background of the new 
directive "Legal Protection of Biotechnological Inventions" which was 
accepted by EU Parliament in May 1998. This Directive also deals with the 
questions of patenting plants and plant varieties. The EPO has to decide how 
to go on with these regulations in the very near future. Additionally, the 
situation gets more complicated because of a legal challenge of the 
Netherlands at the European Court of Justice which also refers (inter alia) 
to the issue of plants. And finally the WTO is to decide on the exclusion of 
plants and animals from patent law (TRIPs Art 27.3) in the next years.
 
In this situation it is very important that the EPO knows that there are 
many organizations and persons all over the world and especially in Europe 
which are against patents on plants and animals. We need the awareness of 
the public to stop the EPO from changing its decision from 1995. 

Please use the attached letter (or a similar one) to tell the EPO about your 
position. Please send a copy of your letter to our office. Thank you very 
much, 

-- Christoph Then 
for "No Patents on Life!"

"No Patents on Life!", Germany
Frohschammerstr. 14
80807 München
Tel: (49-89) 35 65 18 42
Fax: (49-89) 359 66 22
e-mail: keinPatent@aol.com

____________________________________


To 
European Patent Office 
Enlarged Board of Appeal 
concerning  T1054/96 and T 356/93 
80298 München 
Germany
Fax: (49-89) 23 99 45 60 



Dear Madam, dear Sir,

It is with great concern that I follow the current debates concerning the 
possible patentability of plants (and partially animals) at the European 
Patent Office (EPO). 

Even though the European Patent Convention (EPC) states very clearly in 
Art.53b that "plant or animal varieties", and "essentially biological 
processes for the production of plants or animals" may not be patented, the 
biotech industry still tries to circumvent this provision. In its 1995 
landmark decision (T356/93) the EPO has ruled that the wording of the 
Convention clearly excludes the patenting of plants. Due to this ruling, 
patents on animals and plants are currently not granted at the EPO.

However, previous to this ruling, patents were granted where more than one 
variety of plant (or animal variety) was involved. One example is a patent 
granted to Monsanto (EP546090), which does not only include one plant 
variety (the "Round-Up Ready" soybeans) but rather all plant species, 
varieties, seeds and parts of plants which are resistant to Monsanto's 
"Round-Up" herbicide (glyphosate). Quoted are the following species: "Corn, 
wheat, rice, soybean, cotton, sugar beet, oilseed rape, canola, flax, 
sunflower, potato, tobacco, alfalfa, poplar, pine, apple and grape." 

The Board of Appeal of the EPO in its comments (T1054/96) in 1997 has found 
a fitting comparison: granting such patents would amount to concluding from 
a law prohibiting bigamy that polygamy is permitted. The enlarged Board of 
Appeal is now asked to come to a fundamental ruling. We would like to urge 
you to confirm and stick to the current practice of the EPO not to allow any 
claims which relate to or embrace plant varieties. In the light of the EPC 
as it stands any decision departing from the essentials of T356/93 would 
clearly violate the Convention. In its Art. 23 (3) the EPC clearly states 
that members of boards are only bound by the EPC. Other pieces of 
legislation may therefore not be used against the current interpretation of 
Article 53 (b) EPC. This applies, in particular to the European Directive 
09/44/EC which might contravene the Community Patent Convention which forms 
part of the 1989 Luxembourg Agreement and against which the Netherlands 
recently filed a suit before the European Court of Justice. It is my 
conviction that the Enlarged Board of Appeal cannot rule -- contra legem -- 
against the wording of the legal basis, the EPC, and re-grant patents on 
plants (and animals). 

Aside from the juridical matters above, these patents would lead to 
far-reaching patent claims over living nature, would monopolise the seed 
markets and create ethically unacceptable claims over natural creation.

Therefore I call on the members of the Enlarged Board of Appeal to withstand 
the pressures from the biotech-industry and to create clear rules, based on 
and fully incorporating the wording of Art 53b EPC. 

Yours faithfully,

(signature)


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