Breeders Group CIOPORA Calls For New Plant Varieties To Be Patentable

A new “position paper” by a plant breeders industry group revives the argument that plant-related inventions should be patentable. New plant breeding techniques modifying the plant genome are not essentially biological processes, thus should be patentable, the paper says. The group also calls for a worldwide harmonised research exemption on plant variety rights and patents for the purpose of improving the invention.

The International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA) released its position on patents for plant-related inventions on 21 November.

The paper delivers a series of statements in favour of patenting new plant varieties. As a matter of principle, the paper says, “plant related inventions should not be treated so differently that they are essentially deprived of patent protection.”

The organisation agrees that “the mere discovery in nature of existing plant material with interesting characteristics would not, as such, be patentable.” However, technical processes containing technical steps, even when combined with biological steps, are patentable, in particular if the technical step constitutes the essence of the invention, provided the processes are new and inventive, the paper says.

CIOPORA is of the view that the so-called “new plant breeding techniques,” such as CRISPR/Cas systems (gene editing), cisgenesis (gene transfer between organisms), and reverse breeding are processes containing a technical step that by itself introduces or modifies a trait in a plant’s genome and are therefore not essentially biological processes, according to the paper.

CIOPORA Secretary General Edgar Krieger told Intellectual Property Watch that the statement “is based on the findings of the European Commission Expert Group on Biotechnology, who concluded that these new breeding techniques amount to a technical step that by itself (i.e. without crossing) introduces or modifies a trait in a plant’s genome in the sense of the Tomato/Broccoli I decision. We just said “we agree”.

According to Krieger, these findings have been confirmed in the new Examination Guidelines of the EPO, where it is said that these new techniques are “quite simply technical processes.”

“We agree to this,” he said. “These new breeding techniques are therefore not ‘essentially biological processes’ and therefore patentable.”

According to the paper, “the mere fact that a plant serves an aesthetic purpose does not render such plant unpatentable,” and to the extent that plants are produced by means of a technical process, which links the aesthetic effect to a technical effect, such plants should not be excluded from patentability.

Concerning DNA sequences, the paper finds that the use of DNA sequences which have been isolated from their original plant genome for a given novel function, can “in principle” be patentable.

The paper says CIOPORA takes note of the Decision of the Administrative Council of the EPO of 29 June 2017 amending Rules 27 and 28 of the Implementing Regulations to the European Patent Convention, excluding from patentability plants and animals exclusively obtained by an essentially biological breeding process.

On 29 November, the EPO and the Community Plant Variety Office are jointly organising a conference to discuss the June decision of the Administrative Council of the European Patent Organisation.

The conference, taking place in Brussels, will also consider the issues of patentability criteria, the latest developments of the Plant Variety System, the benefits of protection, and transparency and access to information and to innovation, according to organisers.

However, CIOPORA finds that the interpretation of the EPO Enlarged Board of Appeal on the so-called Tomato II and Broccoli II decision is the only correct one. In April 2015, the EPO Enlarged Board of Appeal declared that plants or seeds obtained through conventional breeding methods are patentable. The decision was contested by civil society who then said the EPO was favouring giant agrochemical companies, such as Syngenta and Monsanto, to the detriment of small breeders and consumers (IPW, Biodiversity/Genetic Resources/Biotech, 1 April 2015).

According to the paper, CIOPORA calls for a worldwide harmonised research exemption which allows research on the patented invention including for the purpose of improving the invention. The exemption should be both for plant variety rights and patent law, the paper says, allowing plant breeders to use protected plant material for breeding or discovering and developing a new plant variety. However, the paper adds, the commercialisation of a plant comprising the patented invention should require the authorisation of the patent holder.

CIOPORA also stressed the importance for ornamental/fruit breeders to secure quick and efficient access to patented technology under fair, reasonable and non-discriminatory (FRAND) terms, and supports the establishment of a licensing platform and dispute resolution mechanism.

According to a CIOPORA press release, the position paper was drafted over a period of two years by a working group including breeders, genetic engineers, and patent attorneys, and was approved via a majority vote by CIOPORA members.

 

Image Credits: Flickr – Christopher Rose