EPO Response: No Tricks On Patents On Seeds And Plants

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In response to a report published on 3 April by civil society group No Patent on Seeds alleging that industry and patent examiners in the European Patent Office are finding legal loopholes to grant patents on seeds and plants, an EPO spokesperson told Intellectual Property Watch the patent office does not “apply tricks” to grant patents.

The report stated that by the end of 2011 “nearly 2000 patents on plants” were granted by the EPO, and called for the European Parliament and the European Commission to step in (IPW, Patent Policy, 4 April 2012).

According to Rainer Osterwalder, deputy spokesperson for the EPO, the patent office “follows a clear and transparent procedure which is laid down in the applicable patent law and also in the Examination Guidelines, which are all accessible on the website.”

The EPO, he told Intellectual Property Watch, has issued a recent publication providing facts and statistics on the “melon patent” case (http://www.epo.org/news-issues/issues/melon.html) relating to melon plants resistant to a virus. The patent application was filed with the EPO in 2006, the grant of the patent became effective on 4 May 2011 and is owned by Monsanto Invest B.V., according to the document.

The EPO has received two notices of opposition on this patent, one from a subsidiary of Bayer CropScience, on technical grounds, and the other from No Patents on Seeds, concerned over the use of conventional breeding methods.

It appears that No Patent on Seeds is referring to the EC Directive, Article 4.1 in their report, which Osterwalder said, “states that no patents shall be granted for plant and animal varieties. This is taken from the European Patent Convention, and is strictly applied by the EPO in its practice.”

However, he added, the NGO’s report “fails to point to the subsequent article 4.2, which [...] states that inventions related to plants and animals may be patentable as long as the invention concerned is not restricted to individual plant or animal varieties.”

This means, Osterwalder said, that “the EPO needs to grant a patent for a plant invention as long as carrying out the invention is not restricted to a single variety, and all other patentability criteria are fulfilled. Such patents may encompass plant varieties as long as these are not specifically claimed. As a consequence of the legal provisions and the applicable case law by which the EPO is bound, the grant rate for patents in biotechnology is significantly lower than in all other fields (28% of grants [versus] 47% overall).”

“The law and guidelines are equally applicable to all patent applications in all technical fields in order to establish legal certainty in the innovation process,” he added. “There is no legal basis for treating different technologies differently from each other: Unless exempted specifically from patentability by the law and case law, all technologies are to be treated the same, and a patent must be issued.”

Since the so-called “broccoli” patent was granted (IPW, Patent Policy, 27 October 2011), there has been much discussion and “it has become political,” Osterwalder said, as government have also “started to issue statements concerning plant patents. While some of the points raised in the debate concern the political desirability of such patents, the EPO is solely bound by its legal basis, and expects further clarification from the case law.”

Catherine Saez may be reached at info@ip-watch.ch.

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