tag:blogger.com,1999:blog-8990057754240336385.post6832373514541995515..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: News: President referred questions to the Enlarged Board on patentability of plants exclusively obtained by essentially biological processesDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-8990057754240336385.post-29476359524712384652019-04-08T09:47:55.002+02:002019-04-08T09:47:55.002+02:00Interesting position paper. It confirms that there...Interesting position paper. It confirms that there may be an admissibility issue with the referral, and it seems to agree with the analysis and conclusions of T 1063/18 as to G 2/12 and Art.53(b) EPC as well as the legal status of the Commission Notice (not such status that it would allow an amendment by the Council under Art.33(1)(b) EPC rather than by the Conference under Art. 172 EPC). <br />Which option would have a chance, which would have the best chance? Maybe option E: amend EU legislation (a new Directive) and then amend under Aert.33(1)(b).<br /><br />To be continued!Roel van Woudenberghttps://www.blogger.com/profile/15823355175016282250noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-91549194435194632962019-04-08T09:05:20.555+02:002019-04-08T09:05:20.555+02:00According to another blog (http://patentblog.kluwe...According to another blog (http://patentblog.kluweriplaw.com/2019/04/05/patentability-of-plants-epo-referral-of-decision-t106318-criticized/):<br /><br />"In the meantime, on 25 March 2019, the Chartered Institute of Patent Attorneys (CIPA) in the UK published a position paper on the patenting of plants; or as CIPA writes: ‘on the lawfulness of a number of options for addressing the conflict between decisions of the EPO Boards of Appeal (i.e. G2/12, G2/13 and T1063/18) and Rule 28(2) EPC."<br /><br />"The conclusion of the CIPA position paper:<br /><br />‘CIPA’s position is that the above-mentioned conflict (between judicial interpretations of the EPC and Rule 28(2) EPC) should be solved in a lawful manner."<br />and:<br />"Whilst CIPA has no wish to prescribe any one particular solution to that conflict,<br />For the reasons discussed above, our position is that, at this time:<br />– there are no valid grounds upon which a further EBA opinion can be obtained under either Article 112(1)(b) EPC (Option A) or Article 112(1)(a) EPC (Option C);<br />– there are also no valid grounds upon which the EBA could be persuaded (by the Commission Notice) to arrive at an interpretation of Article 53(b) EPC that differs from that set out in G2/12 and G2/13; and<br />– amendment of Article 53(b) EPC under Option B would be unlawful, regardless of whether that amendment were made under Article 33(1)(b) EPC (which would be unlawful under the EPC) or under Article 172 EPC (which would be unlawful under EU law, and which might also misalign the EPC with a future ruling of the CJEU)<br /><br />Our position is therefore that the only viable options at this time are as follows.<br />– Accept the current interpretation of Article 53(b) EPC (Option D).<br />– Amend EU law and then the EPC (Option E).<br />– Await the issuance of a ruling of the CJEU (Option F).’"<br />[end citation] <br /><br />It links to the CIPA paper on http://www.cipa.org.uk/_resources/assets/attachment/full/0/117604.pdfAnonymousnoreply@blogger.com