MUNICH – Some experts in Europe are coming to agreement that a tipping point might have been reached with regard to biological patents. At a conference organised this week by the “no patents on seeds” initiative on the eve of a public hearing of the European Patent Office on cases involving the patenting of broccoli and tomatoes, non-governmental representatives and farmers associations from Europe and elsewhere said there were detectable changes in American jurisprudence and European governments seem to be rethinking the biopatent issue.

“We have a real chance to push for change in patent law,” Christoph Then, a Greenpeace biopatent expert, said at the conference. With regard to the 20 July EPO hearing and the upcoming judgment, the NGOs do not expect a decisive step away from the patenting of plants and animals.

The EPO itself already warned that the hearing was solely dedicated to check whether marker-assisted selection is a biological breeding process or is a technical method and therefore patentable. The patentability of plants and animals would not be discussed, the EPO announced in a press release.

The broccoli and tomato cases, one patented by Plant Bioscience Ltd. (EP 1069819) and the other by the Israeli Ministry of Agriculture (EP 1211926), have been brought before the EPO’s Enlarged Board of Appeal after France-based seed cooperative Limagrain Group, Swiss biotech company Syngenta and the food multinational Unilever filed complaints respectively.

The background of these complaints, according to the Greenpeace expert, is a ban on patenting mainly biological processes in plant and animal breeding in EU 1998 Directive on the protection of biotechnological inventions. So while the EPO’s hearing might result in a revocation of the breeding procedure, said Then, the products generated could still remain covered by the patents. Greenpeace fought a similar case on sunflowers recently.

Even simple genetic screening and selection of plants and animals with special characteristics developed in classical breeding was used to apply for patents, “because a company was the first to describe a genetic feature,” said Then. “It is a systematic abuse of patent law which [is] resulting in the appropriation of natural food all over the world.” Then said a clear ban on breeding processes and genetic sequences is necessary to avoid the bypassing of existing rules.

The Dutch Parliament, following an initiative of the Dutch ministries of economy and agriculture, was the first to pass a resolution to include a minimal “breeders’ exemption” in their national law. At the same time Parliament decided that a full exemption on the national and EU level has to be explored in the next three months (a report on the debate can be found here.) A motion to directly table a breeders exemption in Brussels and to push for the respective change in the EU biopatent directive failed earlier in July by a margin of 70 to 71 votes, said Niels Louwaars, senior scientist biopolicies at the Dutch Centre for Genetic Resources and program manager international projects at Wageningen University. Louwaars co-authored a study commissioned by the ministries to examine positive and negative effects to innovation of the existing system.

In the study [pdf] on the “Breeding Business” Louwaars and his colleagues concluded: “If you consider breeding an important technology – because we need new plant varieties to cope with climate change or new plant diseases – and if you think access to new resources is important for breeding and diversity is good for competition, then the IP system in plant breeding needs to be changed.”

The study recommended to “get rid of strategic patenting” and asked patent offices to “be more strict in how they apply their own rules,” for example when testing the inventive step. “If patent offices would do this we might be able to get rid of more than 99 percent of questionable patents,” Louwaars said. Antitrust authorities, according to Louwaars, also should become much more active.

When discussing the results of the study with representatives of the European seed industry, a lawyer from seed producer Limagrain said he had proof of the anti-innovative effect of the existing system because he had to stop researchers in his company in many cases from exploring new things because of IP rights granted to seed material.

Seeds of Change

Patents should never extend to breeding and to seeds, said Louwaars. With regard to the failure in the Dutch Parliament to initiate changes at the EU level he said, “We lost a battle, but not the war.” He said he hoped for Germany to be successful in their initiative with regard to changes.

“We have reached the tipping point in Germany,” said Then, pointing to a growing number of statements not only from civil society, but from the political parties and the German Ministry of Agriculture, which is organising a conference on possible options for change in biopatenting. Like the Dutch colleges, the ministry had commissioned a study (for the study in German see here) that warned against the risk of a decline in plant variety through biopatenting.

Matthias Miersch, member of the German Parliament for the Social Democratic Party, said at the Munich conference that the difficulty to change international or EU legislation should not make legislators wait. “National parliaments can take the lead with changes,” he said, pointing to a motion tabled by his party on a complete ban to patent animals, plants and breeding as such. He also was in favour of governments subsidising legal aid to fight biopatents. According to Miersch other parties in the German Parliament were expected to join the initiative.

“There certainly is momentum,” said Carlos Correa, Director of the Centre for Interdisciplinary Studies on Industrial Property and Economics Law, at the University of Buenos Aires. Changes are visible not only in Europe, but also in the US where “healing has started,” he said, and the patent system is being given a second look after years of ever-extending patenting.

From a developing country point of view, it is essential to make the new debate in the EU and the US much more visible, he said. Developing countries often only get the message that they have to adapt to the patent standards of the industrialised countries.

“We have to get the message through that there we are in a phase of reviewing the system,” Correa said. While proposals to the World Trade Organization to clearly ban patents on life in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – as tabled by Bolivia for example – were bold, WTO member countries could declare a stop on these patents in national law and still be fully compliant with TRIPS as it is, he said.

Farmers as Innovators

Wilhelmina Pelegrina, executive director, Southeast Asia Regional Initiatives for Community Empowerment (SEARICE), recommended taking a look into alternatives to patenting or even plant variety protection in breeding. From the experience of her organisation, which works with farmers, farmer organisations and governments in many Southeast Asian countries, she said, “We saw that farmers cannot only conserve traditional seed, but can also develop new seed and be the innovators.”

In Laos, for example, 600 farmers connected with the initiative developed 114 new varieties over a period of nine years, much more than were produced in formal breeding processes. And even in a country with no official government breeding program like Bhutan, over 40 new rice variants have been produced in recent years which led government officials to ponder legislative changes to recognize the informal breeding process.

“We noted that IPR rights was no incentive,” said Pelegrina. Instead, feeding the community and adapting seeds to climate change are important motivations. She concluded that the current seed policies imported from industrialised countries do not fit the highly dynamic development of breeding in local communities.