On July 8, 2021, the Federal Ministry of Justice and Consumer Protection held a symposium on the topic “Patentability of Plants and Animals: Scope for action and need for reform?”, at which, in particular, the different interests of the stakeholders had the opportunity to have a voice. The aim was to explore the scope for action and possible need for reform. The program and the list of speakers can be found here.
Our senior partner Dr. Peter Kather has been invited as a participant and expert on Panel 2 on the scope of protection and enforcement of patents on plants and animals to contribute from the perspective of the infringement lawyer. You can find his impulse statement here. The discussion then mainly focused on whether the disclaimers to exclude “essentially biological processes” are adequately manageable in infringement proceedings.
The presiding judge of the 4c. Civil Division (Patent Litigation Chamber) at the Regional Court Düsseldorf, Ms. Sabine Klepsch, pointed out the problem of being able to determine the disclaimer with legal certainty using the classical means of interpreting patents, which do not include, for example, decisions of the Enlarged Board of Appeal of the EPO. Mr. Kather said that for German patents Sec. § 2a Abs. 3 Nr. 3 contains a legal definition and that it should also be considered to use the classical means of interpretation for statutory interpretation, since disclaimers reflect statutory exceptions.
Throughout the discussion of all panels, the contentious issue remained whether only a targeted technical interference falls outside the patent exclusion or also a technical interference whose result can also be achieved by conventional methods.
Of practical interest was the finding that there are virtually no disputes in Germany arising from granted patents on plants and animals.
Patent attorney Dr. Andreas Popp (Senior Vice President Global Intellectual Property, BASF) and Ms. Claudia Hallebach (Global Head of Legal and IP, KWS) presented a licensing platform that is currently being set up and should contribute to an appropriate balance of interests, similar to the already existing licensing platform for patents on vegetables.
The Federal Ministry of Justice has published a video recording of the symposium online, which we will make available here (English version) and here (German version) on our blog in full length. The entire panel 2 starts from time slot 02:04:00″ to 02:57:50″. The impulse lecture of Dr Kather starts from time slot 02:11:40″ – 02:14:20″.