Revised EPO Patent For Conventional Broccoli Has Public Interest Ramifications

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A patent for a conventionally bred form of the common household vegetable broccoli appears to be on its way to acceptance by the European Patent Office following a change to the patent by the company filing it, according to sources. The decision not to revoke the patent, which has been the subject of protests and now calls for action in national courts, could clear the way for hundreds of other vegetable patents to follow, a source said.

In a rather legal format, the EPO announced on 25 October that an oral hearing in the so-called “broccoli” case had been cancelled, which observers say clears the way for approval of the patent in question. The cancellation of hearing came from the removal of objection by competing companies to the patent filer.

The move calls into question the bounds of patentability on plants and animals, after the EPO appeal board last year rejected patents on conventional breeding such as occurs in nature. The European Patent Office Enlarged Board of Appeal was asked to review the patentability of a grant on broccoli, and another patent on a tomato. The patented broccoli and tomato plants were not genetically modified, but rather simply bred conventionally as farmers have done for ages, according to sources.

Plant varieties are not patentable and are protected under a sui generis system at the International Union for the Protection of Plant Varieties (UPOV).

The board in December 2010 decided that “essentially biological processes for the production of plans (or animals)” are excluded from patentability (IPW, Biodiversity/Genetic Resources/Biotech,10 December 2010).

The broccoli and tomato cases, one patented by Plant Bioscience Ltd. (EP 1069819) and the other by the Israeli Ministry of Agriculture (EP 1211926), had been brought before the EPO’s Enlarged Board of Appeal after France-based seed cooperative Limagrain Group, Swiss biotech company Syngenta, and multinational food company Unilever filed complaints, respectively. Plant Bioscience already markets in the United Kingdom a “new variety” of broccoli made from conventional breeding methods.

According to the EPO, Limagrain and Syngenta alleged that “the patent protects an essentially biological method of breeding plants excluded from patentability under the European Patent Convention (EPC) binding on the EPO.”

Now, Limagrain and Syngenta appear to have been satisfied with the modification to the broccoli patent and conditionally removed their opposition, which caused cancellation of the hearing. With their opposition removed, approval of the patent becomes likely, according to Patrick Durisch, health programme coordinator at the Berne Declaration, a Swiss NGO. It is unclear what specifically triggered the change of views by the companies. The companies could not be reached on deadline.

The EPO said the appeal board maintained its position against patenting of conventional breeding, but further refined it. “Taking into account the ruling of the Enlarged Board of Appeal of the EPO that methods for the production of plants which comprise conventional breeding steps as well as technical ones are not patentable under the applicable European patent law,” the EPO said, “the patentee has proposed to limit its original patent by excluding the breeding methods. Thus, only the broccoli plants as such remain protected.”

“The two firms appealing the patent made their request for a public hearing conditional on whether the board decides not to follow the proposal of the patentee,” EPO added. “Therefore, the board will now issue its reasoned decision in writing.”

The oral hearing in the tomato case is scheduled for 8 November.

Protests at EPO; Call for Action in National Courts

Durisch of the Berne Declaration called the change to the patent a “cheap trick” by Plant Bioscience’s lawyers. Activists thought that the December 2010 decision was “the end of the story,” he said, and that the next step would be EPO repeal of the patent. But that did not happen as the company resubmitted the patent with a focus on the end product rather than the process. The patent had been pending opposition, which now removed effectively means the patent is confirmed, he said.

Hundreds of people representing farmers, environmental and development organisations protested yesterday outside the EPO in Munich, raising concern that patent monopoly rights are being given on basic “resources needed for daily living.” They are calling on European governments to take action in national courts to prevent such patents from proceeding.

Speakers at the demonstration included representatives from organisations such as Friends of the Earth, the German Family Farmers Organisation, and the international coalition of “No Patents On Seeds”, according to a press release.

“Granting patents on plant varieties or on conventional breeding is prohibited within Europe. This patent is in conflict with both prohibitions. If the existing patent law is so inadequately worded that any legal challenge is bound to fail then it has to be changed. This is the only way to protect the interests of consumers, farmers and breeders,” said Christoph Then, patent expert for Greenpeace and a speaker from the No Patents On Seeds coalition.

Concern was also raised about the impact of such patents on global food prices and developing countries. “In making these decisions the European Patent Office is playing an irresponsible game,” said Francois Meienberg of the Berne Declaration. “Breeders as well as farmers can only assume their responsibility for world food security if they have free access to seeds. The ongoing rise in food prices must not be further fueled by patent monopolies.”

Ruth Tippe from the No Patents on Life! Initiative said that further patents with claims on bread, flour and noodles (EP1331845) and cucumber (EP1433378) are also due to be granted. “The EPO is about to grant further patents very soon,” she said. “For example, on 2 November a patent will be granted to Bayer claiming cucumber derived from conventional breeding. If this development is not stopped, there will soon be patents on air, light and love.”

William New may be reached at wnew@ip-watch.ch.

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