EPO Still Granting Patents On Conventional Vegetables; ‘Just Following Rules’

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The European Patent Office is continuing to grant patents on conventional plants despite demands from the European Parliament and the German Parliament that the patent office refrain from granting such patents, the coalition of non-governmental organisations called “No patents on seeds” said in a release.

According to the release, the EPO has granted patent EP2140023 to Syngenta, which says the invention concerns “novel pepper plants resistant to insects, and to seeds and fruits of said plants. The present invention also relates to methods of making and using such plants and their fruits.”

No patents on seeds said this case relates to pepper plants, such as chili, derived from conventional breeding and follows two precedent cases challenged at the EPO (for tomatoes and broccoli) for which decisions are still pending (IPW, IP-Watch briefs, 13 June 2012).

In the group’s view, the EPO has a biased way of interpreting the text of the European Patent Convention, which prohibits patents on plant and animal varieties. The coalition is concern, it said, “that patents will foster further market concentration, making farmers and other stakeholders in food supply even more dependent on just a few big international companies.”

It called for a revision of the European Patent Law “to exclude breeding material, plants and animals and food derived therof from patentability.” They launched an online petition, which they claim has received over 2 million signatures.

EPO: Stop Us Before We Patent Again

Meanwhile, EPO Deputy Spokesperson Rainer Osterwalder told Intellectual Property Watch that according to the European Patent Convention (EPC), plants fulfilling the patentability criteria such as novelty and inventive step are patentable. What is not patentable in Europe are essentially biological breeding methods for plants, such as marker-assisted breeding, he said.

A question remains on the plants issued from those processes as nothing in the current rules indicates how patentable plants should be obtained, he added. This question needs to be clarified by the EPO Enlarged Board of Appeal, in the context of the “broccoli” case, to which it has yet to give an answer.

In the meantime, in the case of patent EP2140023, the EPO had to follow the rules indicated by the EPC, Osterwalder said. The EPO values and respects the opinion of the European Parliament and keeps members informed of progress on those cases, he said, but a resolution of the Parliament is not a legally binding one and cannot supersede the EPO rules, which have been established by its member states.


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

Creative Commons License"EPO Still Granting Patents On Conventional Vegetables; ‘Just Following Rules’" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.


  1. Tim Roberts says

    If the vegetables are conventional, how come patents were granted on them? I suspect they were new and not obvious. If patents are generally a good idea and promote technical development, it’s not clear why they should be banned for useful new plants. As to the objection that the method of producing them is conventional, this is confused thinking. Once you know where to go, getting there may well be straightforward.

    • Octavio Espinosa says

      I refer to the sentence “If patents are generally a good idea and promote technical development, it’s not clear why they should be banned for useful new plants.” A first response to this is that the assumptions are not necessary valid. Are patentes GENERALLY a good idea? Do they promote technical development? The answer is: not always, not necessarily. But even assuming an affirmative answer to those questions, one can submit they not because something is ‘patentable’ it should be patented. Public interest and public policy can (and should) prevail. So, a country may choose to exclude (otherwise patentable) plants from patent protection. The idea behind such exclusion would be that such plants be freely and widely reproduced (i.e. copied) in that country. This is what TRIPS Article 27.3(b) is about. (I apologise if ‘copy’ is seen by some as a ‘four-letter word’).


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