BIO Deutschland and the Federal Ministry of Justice Meet to Discuss Patent Law

On 19 January 2012, the chairpersons of BIO Deutschland’s Working Group on Licences and Technical Contracts, Dr Martin Pöhlchen and Dr Rainer Wessel, met the head of the Patent Law Division at the Federal Ministry of Justice to discuss current developments in the field of intellectual property rights.

Prompted by current events – the first reading of a cross-party motion on amending the EU directive on the legal protection of biotechnological inventions and German patent law took place the same day – they first discussed the current calls to amend the EU directive. Several associations and NGOs are urging that conventionally bred plants and animals as well as the corresponding conventional breeding methods should not be patentable and that this should be clearly regulated by the EU directive on the legal protection of biotechnological inventions. BIO Deutschland’s representatives made clear that they do not see a need for this. On the one hand, the directive has proved over the years that it provides significant value added for the protection of biotechnological inventions. On the other hand, it falls to jurisdiction to define norms more precisely so that they can be clearly interpreted. The Enlarged Board of Appeal at the European Patent Office (EPO) has performed this task very well in the past.

During the meeting, the participants also discussed the status of negotiations on creating a unitary EU patent and unified patent jurisdiction. These negotiations could be largely completed during Poland’s presidency of the EU in the second half of 2012. A few questions, such as the seat of the Unified Patent Court’s central division, remain open. The reform package is due to be completed by the middle of the year. BIO Deutschland expressly welcomes the EU unitary patent.

BIO Deutschland’s call to introduce a grace period was also discussed. This grace period would prevent a prior announcement, particularly one made by the inventor during a certain time period before the patent application was filed, being regarded as the state of the art for the contents of the patent application, thus leading to the licence being rejected. Patent protection is only awarded to new inventions. “New” is defined as the state of the art at the time of the application. (In some circumstances, it also means a short time after the application, according to a ruling by the Enlarged Board of Appeals). Publications in technical journals or lectures at congresses are of great importance in the field of natural sciences and technology, particularly to young scientists. Traditionally, scientists have pursued a strategy of publishing promptly so as not to risk the success of the publication. However, this poses a risk to the patentability of their inventions at a later stage. The Federal Ministry of Justice was happy to discuss this matter, but made clear that the majority of German industry was not in favour of introducing a grace period for reasons of legal certainty. The ministry also said that a grace period could only be introduced on the EU level, adding that it needed concrete information on cases in which the lack of a grace period had had a negative impact. The ministry’s representative pointed out that Germany cannot adapt a “go-it-alone” approach on this issue.