29 June 2017
The 38 Contracting States of the European Patent Office (EPO) at their meeting in The Hague decided to strengthen prohibitions in European patent law in regard to the breeding of plants and animals. However, at the same time, new loopholes have been created that will allow the relevant prohibitions to be eroded. As a result, the EPO will shortly resume granting patents on conventionally bred plants and animals. Already in May 2017, companies were informed that several patents on plants derived from random mutations are ready to be granted. The legal and political controversy will continue.
“Pressure from civil society succeeded in strengthening current prohibitions in European patent law. But this is not yet a long term solution,” says Christoph Then, spokesperson for “No Patents on Seeds!” The EPO and big business will continue to abuse patent law to privatise the resources of daily food production. In reaction, we will maintain our pressure on political decision-makers.”
European patent law already prohibits patents on “essentially biological processes” i.e. breeding processes that do not use genetic engineering for the breeding of plants and animals. Nevertheless, the EPO has in the past granted nearly 200 of patents on plants bred through crossing and selection or other random processes, such as mutations. According to the new rules, patent applications will be refused only if they are related to a plant or animal arising directly from crossing and selection. In most other cases plants and animals will remain patentable. Especially plants and animals which are identified to inherit random mutations that are relevant for the breeding characteristics are defined as being patentable.
In the document adopted, there is also no clear distinction between conventional methods of breeding and genetic engineering: If plants with specific genetic characteristics are patented, then all plants with such traits will be covered by the patent, regardless of whether they are derived from methods of genetic engineering, from conventional breeding or whether they naturally show those traits. In effect, the EPO is fulfilling demands from industry by declaring that plants and animals are patentable if genetic characteristics are described in detail in the patents, no matter how these were achieved.
The patents on barley and beer granted to Carlsberg and Heineken are just one example. In 2016, the companies were granted two patents on barley plants that produce kernels with random mutations. A third patent claims plants resulting from the crossing of the two barley varieties claimed in the other two patents. The patent covers the barley, the brewing process and the beer brewed with the barley. Many civil society organisations have filed oppositions against these patents. The EPO has itself confirmed that, based on the new rules, it is unlikely that these patents will be revoked.
“If plants or animals are patented, other breeders can no longer use those plants or animals or, if they do want to use them, they need to apply for a licence from the patent holder. Under the traditional variety protection system, all conventionally bred varieties on the market can be freely accessed for further breeding. This free access is critical to innovation in breeding and the preservation of biological diversity”, Katherine Dolan says from Arche Noah, Austria.
The “monopoly patents” are primarily in the interests of the largest companies. On the other hand, small- and medium-sized breeders are coming under increased pressure, and fear being squeezed out of the market or taken over by the seed giants. Farmers and consumers alike will become more and more dependent on corporations such as Monsanto and Bayer, which together already control more than 25 percent of the global seed market.
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26 June 2017
On Wednesday this week, the 38 contracting states of the European Patent Office will meet in La Hague to make a decision on the future interpretation of existing prohibitions in European patent law in regard to the breeding of plants and animals. The EU Parliament and the EU Commission are demanding that such patents are confined to genetic engineering. According to a proposal presented by the EPO, some of these patents will indeed no longer be granted in future. However, at the same time, new loopholes are being created that will allow the avoidance of the relevant prohibitions. Consequently, it is more than likely that there will be an overall increase in the number of patents granted on conventional breeding.
European patent law already prohibits patents on “essentially biological processes” i.e. breeding processes that do not use genetic engineering for the breeding of plants and animals. Nevertheless, the EPO has in the past granted several patents on plants bred through crossing and selection or other random processes, such as mutations. According to current proposal of the EPO, in future patents will only be refused if they claim plants or animals directly produced by crossing and selection. However, the prohibitions will become immediately ineffective and invalid for these plants or animals if a specific genetic condition is claimed.
There is no clear distinction foreseen in the proposal between conventional methods of breeding and genetic engineering: If plants with specific genetic characteristics are patented, then all plants with such traits will be covered by the patent, regardless of whether they are derived from methods of genetic engineering or from conventional breeding. In effect, the EPO is fulfilling demands from industry by declaring that plants and animals are patentable if genetic characteristics are described in detail in the patents, no matter how these were achieved.
„The EPO wants to continue granting monopolies on conventional seeds to giant corporates, such as Bayer and Monsanto. Even plants and animals that show random genetic combinations will explicitly be considered to be patentable inventions,” says Erling Frederiksen from NOAH in Denmark. “The EPO is thereby undermining the broad consensus in civil society and amongst politicians that patents on the conventional breeding of plants and animals must be prohibited.”
The patents on barley and beer granted to Carlsberg & Heineken are just one example. In 2016, the companies were granted two patents on barley plants that produce kernels with random mutations. A third patent claims plants resulting from the crossing of the two barley varieties claimed in the other two patents. The patent covers the barley, the brewing process and the beer brewed with the barley. Many civil society organisations have filed oppositions against these patents. However, if the proposal of the EPO is adopted, it is unlikely that these patents will be revoked.
A further coup of the patent industry: Individual cells isolated from plants and animals will be regarded as patentable. These patents would also cover all plants and animals consisting of these cells.
“These new provisions are likely to render the initiative of the EU Commission ineffective. Patent attorneys and companies know exactly how to apply the rules to circumvent the prohibitions,” says Katherine Dolan from Arche Noah, Austria. “In fact, industry was directly involved in drawing up these proposals.”
If plants or animals are patented, other breeders can no longer use those plants or animals or, if they do want to use them, they need to apply for a licence. As yet, all conventionally bred varieties on the market can be freely accessed for further breeding. The “monopoly” patents are primarily in the interests of the largest companies. On the other hand, small- and medium-sized breeders are coming under increased pressure, and fear being squeezed out of the market or taken over by the seed giants. Farmers and consumers alike will become more and more dependent on corporations such as Monsanto and Bayer, which together already control more than 25 percent of the global seed market.
“Politicians must now take preventive measures to stop resources needed for the production of our daily food being sold out to industry. But according to our information, several national governments want to adopt the proposal and are seemingly unaware of the real consequences,” says Christoph Then for the coalition of No Patents on Seeds! “What we are demanding is that patents on conventional breeding are completely prohibited.”
No Patents on Seeds! has now sent an urgent letter to the national governments demanding several changes to the EPO proposal. A request has been made to reject the proposal if it is not subjected to substantial changes.
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7 June 2017
Today members of the international coalition No Patents on Seeds! will arrive outside the European Patent Office (EPO) with a barrel of organic, non-alcoholic beer on a wagon pulled by six brewery horses. Their purpose: to deliver an opposition against a third patent on barley and beer granted to Carlsberg and Heineken in 2016 (EP 2575433). These major beer brewing companies are claiming barley and beer as their invention. The opposition was filed jointly by around 40 organisations.
The patent covers barley plants that supposedly make beer brewing simpler. The plants were bred using conventional breeding methods and are not a product of genetic engineering. The companies already hold two patents on barley plants that produce kernels which – owing to random mutations in the genome – lack certain characteristics that can negatively impact the taste of beer. This third patent claims plants resulting from the crossing of the two barley varieties claimed in the other two patents. The aim of further crossing the plants was to have a combination of the desired traits in a single variety. The patent covers the barley, the brewing process and the beer brewed with the barley.
“Obviously, this patent is completely unacceptable: random mutations are not an invention. The plants resulting from further crossing are not patentable,” says Erling Frederiksen from NOAH in Denmark. “This patent is an example of the continued abuse of patent law with the intention of monopolising the resources of food production. Nobody should be allowed to control food crops regardless of whether barley, rice or wheat.”
Patents such as the one on barley can still be granted in future. However, after more than ten years of protest from civil society organisations, the 38 Contracting States of the EPO will meet at the end of June at Administrative Council of the EPO in La Hague to make a decision in favour of strengthening the current prohibitions in patent law. According to a proposal presented by the EPO, plants and animals that are exclusively derived from crossing and selection will no longer be regarded as patentable in Europe. Nevertheless, the current proposal still foresees far-reaching exemptions. For example, if random mutations are identified in the plants or animals they still can be patented as 'inventions’. Thus, patents such as the one on barley and beer could still be granted in future. The proposal is further inconsistent with the interpretation of patent law put forward by the European Commission in November 2016, which stated that only methods of genetic engineering that directly intervene in the genome of plants or animals can be regarded as patentable. In fact, the EU Parliament demanded a complete prohibition of patents on conventional breeding.
“Patents on conventional breeding are a threat to global food security. The big companies are driven by their own profits and not by the needs of broader society,” Fabian Molina says for the development organisation Swissaid. “These patents on seeds can stop traditional breeders from developing food plants adapted regional needs. We need legal certainty that their freedom to operate is not hampered by patents.”
The organisations behind the coalition No Patents on Seeds! are demanding that all conventional breeding is excluded from patentability.
“Today we may be serving the last round of “free” beer to the staff members of the EPO. In its actions to date, the EPO has consistently put the interests of big business and the legal profession before the public interest. The patent system can only be legitimate if it abides by the law and rules to serve the interests of society as a whole,” says Christoph Then for No Patents on Seeds! “We are demanding that the EPO changes its ways and finally implements effective prohibitions in patent law since these are of utmost importance to consumers, farmers and breeders.”
Organisations joining the opposition are Arbeitsgemeinschaft bäuerliche Landwirtschaft (AbL), Arbeitsgemeinschaft der Umweltbeauftragten der Gliedkirchen der Evangelischen Kirche in Deutschland (AGU), Arche Noah Austria, ARGE Schöpfungsverantwortung Austria, Bioland, Bread for the World, Bündnis gentechnikfreie Landwirtschaft, BUND Naturschutz Bayern (BN), Friends of the Earth, Germany (BUND), Bundesverband Naturkost Naturwaren (BNN), Campact, Copenhagen Food co-operative Denmark, Die Freien Bäcker, Evangelischer Dienst auf dem Land in der EKD (EDL), Erzeugergemeinschaft für ökologische Braurohstoffe (EZÖB), Erzeugergemeinschaft Bördeland und Diemetal, FIAN, GAIA Portugal, Gäa e.V.- Vereinigung ökologischer Landbau, Gen-ethisches Netzwerk (GeN), HORIZONT3000 Austria, IG Milch Austria, IG Nachbau, Katholische Landvolkbewegung (KLB), No Patents on Life!, No Patents on Seeds!, NOAH – Friends of the Earth Denmark, Plataforma transgenicos fora Portugal, Pro Regenwald, ProSpecie Rara Switzerland, Sambucus, Save Our Seeds!, Slow Food Germany, Swissaid, Umweltinstitut München, Verband Katholisches Landvolk (VKL), Welthaus Diözese Graz-Seckau Austria, WeMove.EU, Zivilcourage Rosenheim and Zukunftsstiftung Landwirtschaft.
Contacts:
Erling Frederiksen, Tel: + 45 28212989, erling.frederiksen@gmail.com
Fabian Molina, SWISSAID, +41 79 781 12 28
Christoph Then, No Patents on Seeds!, Tel + 49 151 54638040, info@no-patents-on-seeds.org
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26 April 2017
Tomorrow the Committee on Patent Law of the European Patent Office (EPO) will meet in Munich to discuss how to in future prohibit patents on conventionally bred plants and animals. The meeting is a reaction to a statement by the European Commission that patents should only be granted in relation to genetical engineering and not conventional breeding. This statement is also supported by the EU Member States, which have a majority among the 38 Contracting States of the EPO. Given the EPO has granted around 200 patents concerning conventionally bred plants in recent years, steps must now be taken to change its practice. However, it is unclear whether the necessary changes will really be implemented. One reason: Representatives of industry and patent lawyers are invited to join the meeting, which takes place in complete secrecy, while representatives of civil society are excluded.
“The international coalition No Patents on Seeds! sent a letter to the EPO in February asking for public participation in this important meeting. We received no answer. Meanwhile, industry representatives (BUSINESSEUROPE) and patent law lobbyists (epi), which clearly both have strong interests in the issue, may attend the meeting and have access to all relevant documents”, says Katherine Dolan from Arche Noah, Austria. “The EPO’s status and income depend on the number of patents it can grant. So it is hardly surprising that it is trying to protect its own interest and that of the industry by preventing any public scrutiny of its actions.”
There are further reasons for doubting the willingness of the EPO to really move forward: In a confidential position paper of the President of the EPO seen by No Patents on Seeds! only minor changes are proposed. These changes would exclude from patentability only plants and animals that are derived exclusively from a combination of crossing and selection, not from other types of conventional breeding. As recent research by No Patents on Seeds! shows, this proposal can be easily circumvented by the clever wording of patent claims:
“Conventional breeding is not limited to a combination of crossing and selection. The selection and use of genetic variants and random mutations as well as propagation processes such as selfing are widely used in conventional breeding”, says Christoph Then from No Patents on Seeds! “Our research shows that 65% of all patents granted on conventionally bred plants in 2016 were based on random mutations. These plants still will be patentable if the proposal of the President of the EPO is adopted.”
Patents on beer granted in 2016 by the EPO for Carlsberg and Heineken are recent examples of how these loopholes are already being exploited. Following random mutations in the barley, all barley plants with a specific quality in brewing are claimed as inventions as well as the brewing process and produced beer. Civil society organisations in several European countries have started protestsagainst these patents.
In a detailed briefing sent to the Members of the Committee on Patent Law, “No Patents on Seeds!” has set out three key demands:
*The EPO must clarify that all conventional breeding processes, including the use of random mutations, and all steps used in the breeding process, such as selection and/or propagation, are excluded from patentability.
The measures put forward by No Patents on Seeds! would provide legal clarity and certainty for conventional breeders, being comparable and complementary to the breeders exemption as established in plant variety protection system: As long as conventional breeders are not using methods for genetic engineering or plants and animals derived thereof, they do not have to worry about the patent system, but are free to operate in their breeding activities.
It is expected that the 38 Contracting States of the EPO, which include the EU Member States, will convene in June 2017 at a meeting of the Administrative Council. They could then make a decision on how the current prohibitions in patent law can be applied in future. A two-thirds majority is required for a decision.
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10 April 2017
Patents claiming wheat, flour and bread, or tomatoes, lettuce and cucumber as inventions of industry – these are just a few examples of patent applications that were filed in 2016. The patent applications were filed to cover conventional breeding without any method of genetic engineering being involved. Currently, more and more patents are being filed in Europe on the conventional breeding of plants and animals, despite EU institutions having declared that this is something they want to stop. Unless political decision-makers take action, many of them have a good chance of being granted by the European Patent Office (EPO).
Research undertaken by the initiative No Patents on Seeds! shows that in 2016 around 60 patent applications on the conventional breeding of plants were filed at the World Intellectual Property Institution (WIPO) in Geneva. Around 50 further patents concern conventional breeding and methods of genetic engineering were filed in addition. Altogether, around 30 percent of all patent applications filed in the plant breeding sector were on conventional plant breeding. All in all, around 340 patent applications were filed in this sector. Most of these patents will be examined by the EPO.
“We are seeing companies such as Monsanto, Bayer, DuPont, Dow AgroSciences and Syngenta file more and more applications on conventional plant breeding in Europe. These companies are not simply wasting their time and money – they have an expectation that these patents will be granted”, says Ruth Tippe, researcher for No Patents on Seeds!
The companies that filed the highest number of patent applications on plants in 2016, were DuPont (38 applications), Monsanto (22), Dow AgroSciences (16), Bayer (14) and Syngenta (7). The way in which recent patent applications are phrased can have far reaching consequences: Companies are increasingly submitting patent applications for interesting genetic information or characteristics they have, for example, identified by screening the genomes of plants. If these patents are granted, they cover all the plants and subsequent generations of plants with the same characteristics, regardless of how they were bred.
The patents on wheat, flour and food derived thereof are amongst these patent applications. They were filed by Arcadia BioSciences, a US company that collaborates closely with companies such as Dow AgroSciences. The companies claim that random mutations and natural variations in the genome of wheat plants are their invention. These traits are supposed to prolong the shelf-life of products such as grains, flours and bread; and they become inventions belonging to the companies. Arcadia claims all relevant mutations and genetic variations in wheat plants, and all wheat plants with the relevant characteristics as well as all food products derived thereof. The company has a good chance of the patent being granted. In 2016, the EPO granted very similar patents to the brewing companies Carlsberg and Heineken, which are based on random mutations in barley and also cover the process of brewing and all beverages derived thereof.
„The patents granted to Carlsberg and Heineken are increasingly becoming important precedents. Only if political action is taken to stop similar patents being granted in future, will most of the filed applications be rejected“, says Christoph Then, for No Patents on Seeds!. „Unless this happens, we will continue to see the sellout of our basic food resources being actively supported by the EPO.“
Indeed, as No Patents on Seeds! discovered, examiners at the EPO have already started to advise industry on how to phrase their patent applications to gain further monopolies on food plants in future.
No Patents on Seeds! is demanding that the contracting states of the EPO set a course to effectively stop patents on conventional plant and animal breeding at their next meeting in June. A technical paper with proposed changes in current interpretation in patent law has already been sent to the Patent Law Committee, which will meet at the end of April to discuss possible solutions. At the meeting, industry and the lobby organisations for patent lawyers will be present as observers, therefore No Patents on Seeds! is also requesting access.
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Report on the patent applications
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6. April 2017
The No Patent on Seeds! initiative has undertaken comprehensive research into patents granted on plants by the European Patent Office (EPO) in 2016. All in all, around 170 patents on plants were granted. Another 60 patents were issued on processes for genetic engineering of plants. The overall number of European patents on plants now stands at about 3000. At the same time, there has been a constant increase in the percentage of patents granted on conventional breeding. Despite the EPO announcing at the end of 2016 that it would stop granting patents on conventional breeding, last year, around 40 patents were granted in this area. In total, the EPO has already granted around 200 patents on conventional plant breeding.
As more detailed research shows, increased pressure from the EU did, indeed, stop the EPO from granting several patents in conventional breeding. The EU Commission, the Member States of the EU and the EU Parliament have jointly have taken a position against those patents. Now, however, it is becoming apparent that the EPO is working behind the scenes to create new loopholes to allow the continued patenting of conventionally bred plants and animals in the future. Many companies and patent lawyers seem to be adapting their patent applications accordingly.
“It is shocking to see just how easy it is for companies and patent lobbyists to escape political decision-making. All they need to do is to slightly change the focus of their patent claims in order to continue claiming seeds, plants and harvest as their invention. This allows companies, such as Bayer and Monsanto, to take increasing control of agriculture and food production,” says Christoph Then for No Patents on Seeds!.
One trick frequently used by companies is to no longer claim the process for breeding, but to simply claim plant characteristics, such as genetic conditions or changes in the phenotype of the plants. The scope of these patents covers all plants with these same characteristics, no matter which process was used in breeding. Further, in many cases, random mutations are claimed as inventions. This is in direct contradiction to the statement made by the EU that only methods for genetic engineering can be regarded as an invention. In 2016, up to 65 percent of patents granted on conventionally bred plants were based on random mutations.
Patents on beer held by Carlsberg and Heineken are recent examples of how these loopholes are being exploited. Starting with random mutations, all barley plants with a specific quality in brewing, the brewing process and the beer produced thereof are claimed as inventions. Civil society organisations in several European countries have actively started to protest against such practices. Similar patents on random mutations were granted to Bayer (oilseed rape), Monsanto (plants for oil production) and DuPont (maize). In its examination reports, the EPO advises the companies to change their claims accordingly in order to obtain such patents in the future.
Companies such as Bayer, Monsanto, BASF and DuPont, are amongst those holding the greatest number of patents granted on plant breeding. Taking into account some of their affiliates, BASF and Monsanto are leading with around 30 patents (each), followed by Bayer (20), DuPont and Dow AgroSciences (together 14) and finally Syngenta (8). If Monsanto is taken over by Bayer, the newly formed company would hold by far the greatest number of patents. Bayer has already publicly announced that it wants to prevent any political decisions that would lead to prohibitions in patent law becoming effective.
No Patents on Seeds! is demanding that the contracting states of the EPO set a course to effectively stop patents on conventional plant and animal breeding at their next meeting in June. A technical paper with proposed changes in current interpretation in patent law has already been sent to the Patent Law Committee, which will meet at the end of April to discuss possible solutions. At the meeting, industry and the lobby organisations for patent lawyers will be present as observers, therefore No Patents on Seeds! is also requesting access.
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15 March 2017
Today, 32 civil society organisations will start a public appeal to politicians and demand that effective prohibitions are put in place to stop the granting of patents on plants and animals derived from conventional breeding. The protest is targeted at patents granted by the European Patent Office (EPO) in 2016 (EP2384110, EP2373154 and EP2575433) to the brewing companies Carlsberg and Heineken. The patents claim barley derived from conventional breeding, its usage in brewing beer and the beer produced thereof. However, the patents are simply based on random mutations in the plant’s genome. Just recently, the EU Commission and the EU Member States made it very clear that patents on plants and animals derived from conventional breeding are not allowed. Nevertheless, the EPO wants to continue to grant patents in future on random mutations. Currently, the civil society organisations are demanding that politicians ensure the loopholes in the law are closed.
The patented barley is said to simplify brewing and make it cheaper, the beer will also supposedly keep fresh for longer. The two brewing companies can profit twice over – by selling the beer and from the cultivation of the barley. At the same time, they can prevent other breeders from breeding better barley and also extend their market dominance – to the detriment of farmers, breeders, other breweries and consumers.
“If random mutations in the genome of plants are sufficient to claim barley and beer as inventions, then there is something completely wrong with the whole patent system. Politicians now need to act to stop such patents, and make it clear that the interests of consumers come before those of big companies,” says Erling Frederiksen from Friends of the Earth, Denmark.
The EPO plainly intends to carry on granting patents on plants and animals in future if random mutations are detected or triggered. In the conventional breeding sector, around half of patents as granted are based on such 'inventions at random’.
“If patents on plants and animals inheriting random mutations are allowed, the prohibition of patents on conventional breeding will remain largely ineffective. We urgently need political action and legal clarity,” says Ruth Tippe from “No Patents on Life!”. “Our research shows that such patents represent a large share of the patents that have been granted in relation to conventional breeding.”
The patents not only cover the barley, the brewing process and the beer itself, but also all barley plants with the characteristics described in the patent, independently of how they were bred. That is why the organisations are demanding that the scope of such patents is restricted: “According to the EPO’s current practice, companies which have a patent on plants or animals derived from genetic engineering can also claim all other plants and animals as their invention if they show the same characteristics, even if these characteristics occurred in nature or through conventional breeding methods,” says Christoph Then for the coalition 'No Patents on Seeds!’. “If we do not get legally binding boundaries to restrict the scope of patents, the EPO and big companies will continue to be able to subvert the prohibition on patents on plants and animals.”
The organisations are warning that the EPO has its own vested interests and has already tried several times in the past to circumvent the prohibition on patenting life. They are demanding that politicians no longer leave it solely up to the EPO to decide upon interpretation of the prohibition in patent law.
The following organisations are starting the appeal: Arbeitsgemeinschaft bäuerliche Landwirtschaft (AbL, Germany), Arbeitsgemeinschaft der Umweltbeauftragten der Gliedkirchen in der EKD (AGU, Germany) Arche Noah (Austria), Bioland (Germany), Bund für Umwelt und Naturschutz Deutschland (BUND) und Bund Naturschutz in Bayern (BN) (Germany), Bund Ökologische Lebensmittelwirtschaft (BÖLW, Germany), Bundesverband Naturkost Naturwaren (BNN, Germany), Die freien Bäcker, FIAN (Germany), Frosamlerne (Denmark), Gen-ethisches Netzwerk (Germany), Katholische Landvolkbewegung Deutschland (KLB, Deutschland), Kultursaat e.V. (Germany), Landesforeningen Praktisk Økologi (Denmark), IG Nachbau (Germany), IG Saatgut (Germany), NOAH – Friends of the Earth (Denmark), No Patents on Life! (Germany), No Patents on Seeds! (Europe), Plataforma Transgénicos Fora (Portugal), ProSpecieRara (Switzerland), PublicEye (Switzerland), Sambucus (Germany), Save or Seeds (SOS, Germany), SLOW (Denmark), Slow Food Germany (and Denmark regional), Swissaid (Switzerland), Umweltinstitut München (Germany), Verband Katholisches Landvolk e. V. (Germany), Zivilcourage (Germany).
The appeal aims to ensure that European governments will use their power in the Administrative Council of the EPO to render legal clarity and certainty on prohibitions in patent law. The Administrative Council, which represents the 38 Contracting States of the European Patent Organisation, will meet in Munich today and tomorrow. However, final conclusions are not expected before the next meeting in June 2017.
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