Working Group on Licences and Technical Contracts Discusses Biopatents

Members of BIO Deutschland’s Working Group on Licences and Technical Contracts met on 15 July and discussed the topics of the continued validity of licence agreements in cases of insolvency, current developments at the European Patent Office (EPO), including the pending verdicts by the Enlarged Board of Appeals (keyword: “broccoli patent”), and the status of the implementation of the EU patent.

Following talks with the Federal Ministry of Justice at the start of the year, during which representatives of the working group pointed out a desirable regulation on the continued validity of licence agreements in cases of insolvency, BÜNDNIS 90/DIE GRÜNEN put forward the motion (Bundestag Printed Papers 17/2008) to “rapidly submit [draft] insolvency legislation reforms”.  The willingness to amend insolvency legislation was already laid down in the Coalition Agreement. The working group’s experts agreed that this impetus should be used in order to include the demand for a regulation on the continued validity of licence agreements in cases of insolvency. The working group will prepare further steps on this matter and guide the process.

As covered extensively in the press in July, the Enlarged Board of Appeals of the EPO dealt with the broccoli (G2/07) and tomatoes (G1/08) cases in the oral proceedings of 20 and 21 July. Fundamentally, this concerns the question of whether the registered patents on cultivating broccoli with a higher amount of anticarcinogens and on tomatoes with a reduced water content are “primarily biological” processes and hence not patentable. At present, a trend cannot yet be ascertained. The verdicts are expected in the autumn. The working group already produced a statement on the question of amending biopatent legislation in June 2009. This can be found in German at http://www.biodeutschland.org/positionspapiere.html.

As regards the EU patent, the European Council has put forward a suggestion for an act on regulating the translation of patents in the EU, which was fundamentally welcomed by the members of the working group. The regulations on translation will be pursued separately, as a regulation on translation in the form of an act can only be decided unanimously by the Council following a hearing by the European Parliament in accordance with Article 118 of the Treaty of Lisbon. The bill provides for the submission and publication of the patent in one of the official languages of the EU (English, German and French) and the translation into the other official languages. In cases of legal dispute, the alleged patent infringer must apply for a translation into the official language of the member state in which the infringement occurred or from which the infringer originates. A suggestion on the remaining regulations on the EU patent will be made following the presentation of a report by the European Court of Justice on the question of the compatibility of this type of regulation with the Treaty of Lisbon. The report is expected at the end of the year. However, the working group experts pointed out that the announced reduction in fees involved in patent costs only refers to the costs of translation. Because of higher financial burdens resulting from a series of procedural changes, particularly as regards the consistency of the application, the divisional applications and the patent claims, this reduction is completely ineffective. Overall, the costs involved in European patent procedures are continuing to increase unchecked. This is a very negative development, especially for innovative biotech SMEs and universities, and must be stopped. The working group will contact the new EPO president, Benoît Battistelli on this matter.

Members of BIO Deutschland may request a copy of the minutes of the meeting from the BIO Deutschland office.