Plant Patentability Questions Deepen In EPO Tomato Patent Case

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By Catherine Saez

While the Enlarged Board of Appeal of the European Patent Office is reviewing the so-called “tomato case,” collateral questions are being raised about the consequences on plant innovation of the non-patentability of some processes.

The EPO press release is here.

The tomato case concerns a patent granted in November 2003 by the European Patent Office (EPO) to the Israeli Ministry of Agriculture, and challenged later by the Unilever company on the grounds that the patent relates to an essentially biological process for the production of plants. The patent was maintained, but not in its entirety, and the EPO’s decision was appealed by the patent holder (IPW, Biodiversity/Genetic Resources/Biotech, 8 February 2012).

According to an EPO representative, the questions [pdf] sent to the Enlarged Board of Appeal seek to determine if a plant obtained with an essentially biological process, which is not patentable, would itself be patentable.

Essentially biological processes are defined in Rule 23b (5) of the European Patent Convention (EPC) as follows: “A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.”

The questions refer to Article 53(b) of the EPC on exceptions to patentability.

The interim decision of 31 May [pdf], details the decision to forward the questions, and the points of law specifically raised. In November, Unilever made the request that the board refer additional questions of law to the Enlarged Board of Appeal, according to the decision document.

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  1. Concerned Garden Advocate says
    Q: What is the “melon patent” case about?
    A: “The patent relates to melon plants resistant to a virus – cucurbit yellow stunting disorder virus (CYSDV) – that attacks melons, turning them yellow and reducing fruit yield. The plants are made resistant by the introduction of a gene from another melon plant by way of a conventional breeding method involving the use of a genetic marker (“marker-assisted breeding”). The gene which is responsible for the resistance was first found in a melon plant in India and catalogued in 1961. It has been publicly available since 1966.

    “The patent covers the modified plant, parts of the plant and its fruits and seeds, but not the breeding process for obtaining the plant.

    “The patent application was filed with the EPO on 21 December 2006 and the grant of the patent became effective on 4 May 2011. The patent is owned by Monsanto Invest B.V.”


  1. […] Вопросы патентования усложнились при рассмотрении европейским патентным ведомством дела по патенту на томаты (IP Watch, на английском) […]

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