EPO Backs Patents On Conventional Plants: Broccoli, Tomato Cases Decided

The highest court of the European Patent Office has declared that plants or seeds obtained through conventional breeding methods are patentable.

Two long-awaited decisions on the patentability of conventional plants were released last week. Both outcomes state that plants or seeds obtained through a conventional breeding methods are patentable. Civil society reacted quickly to say that the EPO is favouring giant agrochemical companies such as Syngenta and Monsanto, to the detriment of small breeders and consumers.

The decisions relate to the so-called “Tomato II” case on a “method for breeding tomatoes having reduced water content and product of the method;” and the so-called Broccoli II case involving a “method for selective increase of the anticarcinogenic glucosinolates in brassica species,” (IPW, Biodiversity/Genetic Resources/Biotech, 16 February 2015).

According to the EPO, the decisions (G 2/12 and G 2/13) reached by the Enlarged Board of Appeal state that “Plant products such as fruits, seeds and parts of plants are patentable in principle under the European Patent Convention (EPC) even if they are obtained through essentially biological breeding methods involving crossing and selection.”

The Enlarged Board of Appeal had to establish whether plant products such as plant parts or seeds are patentable if they are obtained by essentially biological breeding methods not patentable under the applicable law, according to a EPO document.

The Board of Appeal found that the exclusion of essentially biological processes for the production of plants does not extent to a patent claim for a product that is directly obtained from or defined by such a breeding process, the EPO said.

The Enlarged Board of Appeal “is deciding on points of law referred to it by the Technical Board of Appeal, giving opinions on points of law referred to it by the President of the EPO and decides on petitions for review of decisions by the Boards of Appeal. In the present referral the Board was composed of seven members,” according to the EPO.

Decisions made by the Enlarged Board of Appeal cannot be challenged before another judiciary, an EPO spokesperson told Intellectual Property Watch.

The “tomato case” patent EP1211926 was granted on 26 November 2003 to the Ministry of Agriculture of Israel, and was opposed by Unilever, the EPO said. The “broccoli case” patent EP1069819 was granted to Plant Bioscience on 26 November 2003, and was opposed by Syngenta and Limagrain, two agricultural biotech companies.

Civil Society Alarmed, Calls for Revision of EU Patent Law

In a 27 March press release [pdf in French], the Berne Declaration and SWISSAID said the decision favours giant agrochemical companies such as Syngenta and Monsanto and will hinder innovation in the area of plant and animal selection.

The decision will be used to bypass the current legislation in Europe, according to which conventional selection processes on plant and animals cannot be patented, as products issued from those processes will be patentable, they said. According to the release, over 7,500 patent applications on plants and 5,000 applications for animals have been filed at the EPO, and 3,800 patents have been granted, 120 of which relate to conventional selection processes. Some 1,000 applications are pending, they said.

The coalition “no patents on seeds” also issued a release [pdf] criticising the decision. “The EPO has paved the way for companies such as Monsanto, Syngenta and others to take control of resources we all need for our daily lives,” they said.

They said they are “concerned that patents on plant and animal breeding will foster further market concentration, erode small breeding companies, making farmers and other stakeholders of the food supply chain even more dependent on just a few big international companies and ultimately reduce consumer choice.”

“We call upon European governments to put political pressure on the EPO to change its practice,” Christoph Then of No Patents on Seeds said in the release. “No company should hold monopolies on sunlight, air or water. The same is true for the resources needed for food production.”

The coalition is calling “for a revision of European Patent Law to exclude breeding material, plants and animals and food derived thereof from patentability.”

According to the coalition, the European Parliament, Germany, France and the Netherlands are “apparently aware of the problem and are taking some measures.” However, “the EU Commission and most Member States of the EPO are mostly taking no action.”

The coalition calls for “immediate political action,” and in particular that European governments “take initiative at the Administrative Council of the EPO, which can change the interpretation of current patent law by amending the Implementation Regulation of the EPO.”

Another possibility, they said, is “that EU Commission issues a legally binding interpretation of existing law that stops the further granting of patents on plants and animals from conventional breeding within the EU.”

The coalition includes Bionext (Netherlands), the Berne Declaration (Switzerland), GeneWatch (United Kingdom), Greenpeace, Misereor (Germany), Development Fund (Norway), No Patents on Life (Germany), Red de Semillas (Spain), Rete Semi Rurali (Italy), Réseau Semences Paysannes (France), and SWISSAID (Switzerland). The coalition says it is supported by several hundred other organisations.

Industry Reaction

No industry response had been received by press time.

In a recent interview, Denise Dewar, executive director for plant biotechnology for industry group Croplife International, told Intellectual Property Watch, “We hope that this decision will confirm the patentability of plant material and decide that the unpatentability of an essentially biological process does not extend to the plant material obtained with an essentially biological processes.”

“CropLife has always stated that exceptions to patentability be interpreted narrowly. The exclusion of a process should not have a negative effect on the allowability of a product claim and the patentability of plant material obtained with an essentially biological process should therefore be secured,” she said in the February interview.

 

Image Credits: Flickr – Wanko