tag:blogger.com,1999:blog-5574479.post5152052434104710303..comments2024-03-28T08:10:18.991+00:00Comments on The IPKat: A Kat revisits Broccoli & Tomatoes, part deux - what does it all mean?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-86768442808883220892015-04-01T14:28:43.629+01:002015-04-01T14:28:43.629+01:00@Leonard,
You are trying to revive the discussion...@Leonard,<br /><br />You are trying to revive the discussion that was basically decided before the EPO by 1) complying with the European biotech directive and 2) the Novartis decisinon (G 1/98).<br /><br />In these two instances it has been decided that plants (if not restricted to one specific variety) may be patented even although it has been recognized that such a plant may encompass protection for a large number of varieties.<br /><br />As the current EBoA has argued: it apparently was the decision of the legislator (which was endorsed by the EPC 2000 diplomatic conference because they did not amend Art. 53 b) that the bar to patentability only would apply to the level of a specific variety. <br /><br />If you want to change the law, you should divert to the legislator and not to the judges that interpret and explain the law. That such an action may be successful can be gauged from the fact that in both the German and the Dutch national patent law products that are obtained from essential biological methods )e.g. crossing) are exempted from patentability.Bart van Wezenbeeknoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-91015363675341794562015-04-01T13:48:27.267+01:002015-04-01T13:48:27.267+01:00Dear Sally
I think that the “as such” expression ...Dear Sally<br /><br />I think that the “as such” expression was me trying to describe the effect of the decisions rather than language of the decisions themselves. However, it is correct that the Boards and Enlarged Board of Appeal of the EPO have in general limited the exclusions to patentability to exclude only the precise thing that is stated to be excluded under the law, and have refrained from giving the exclusions an expansive meaning. This is not new, and goes back to, for example, the narrow interpretation of the exclusions of “plant varieties” decided in G1/98 (mentioned in the main blogpost) and “animal varieties” decided in T19/90 (the oncomouse case).<br /><br /><br />Dear Lennard<br /><br />I do not believe that it is correct that the “specialists have failed to realize” the facts mentioned in your comment. My understanding is that the Enlarged Board and the parties were fully aware of these facts. According to G1/98, a claim is excluded from patentability only if it relates to an individual plant variety, and not simply because it encompasses plant varieties. The views that you expressed are shared by others, and seem to have been reflected in the amicus curiae briefs. They were however rejected by the Enlarged Board.<br /><br />Best wishes<br /><br />Darren<br />Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38583615781920102822015-04-01T11:22:40.766+01:002015-04-01T11:22:40.766+01:00On Tomato II:
The specialists have failed to reali...On Tomato II:<br />The specialists have failed to realize that the method of breeding leads to new varieties namely single seeds which are grown into one single plant. Each single tomato plant is observed and it does produce tomatoes with reduced fruit water content, then that single plant is taken and reproduced by vegetative means and it becomes a tomato variety, or, in case that single plant is taken and used repeatedly to produce F1 Hybrid seeds, and then that F1 hybrid is also a new variety under the UPOV-Law provided it meets the homogeneity requirements.<br />Thus the patent encompasses the creation of new varieties by means of an essentially biological process, and no patent should therefore be granted.<br />With the opening now apparently allowed, any breeder can monopolize one or more NEW characteristics within one or more entire species, as opposed to the plant breeders’ rights protection system, which system only offers protection for one single variety that has the NEW characteristic in question.<br />I hope that this personal opinion is helpful in the whole evaluation process.<br /><br />Lennard van Vliet, Hortis Legal, The Netherlandshttp://www.hortis.nlnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66282343943568976102015-04-01T08:24:06.174+01:002015-04-01T08:24:06.174+01:00Not a Patent person but struck by the echo of &quo...Not a Patent person but struck by the echo of " a computer program as such" in " .... a plant variety as such" : is patentability creeping across the plant world as it's crept across the world of software ?Anonymoushttps://www.blogger.com/profile/17547963789032954274noreply@blogger.com