Plant Patentability Questions Deepen In EPO Tomato Patent CasePublished on 13 June 2012 @ 12:30 am
Intellectual Property Watch
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.