The EPO closes the broccoli and tomato case

Authors: Birute Daudierene, Senior Patent Consultant, Patent Attorney at METIDA, dr. Jacekas Antulis, Associated Partner, Head of the Patent Division at METIDA

vegetables-344422_640The Enlarged Board of Appeal of the European Patent Office has finally decided on combined broccoli (G2/13) and tomato (G2/12) cases. On 25 March the Board handed down the decision according to which new plant species and their seeds obtained from essentially biological processes cannot be excluded from patentability.

Under article 53(b) of the European Patent Convention (EPC), European patents cannot be granted in respect of plants or animals’ breeding or essentially biological processes that exclusively result from natural phenomena i.e. crossing or selection. However, up to this decision, the article had not clearly defined whether an invention became patentable if any technical feature was included into the biological process.

Tomato patent

The “tomato case” patent (EP1211926) was granted on 26 November 2003 to the Ministry of Agriculture of Israel. This patent is related to tomato fruits that have the reduced amount of water due to the selection process. The latter comprises the interbreeding of two different plant types and various selection steps (i.e. crossing, growing, selection and ripening), which help to produce tomatoes with reduced water and wrinkled skin.

From the defendants’ point of view, article 53(b) EPC cannot be applied in this matter, as the crossing was implemented with special intervention, not naturally. In addition, the selection of tomatoes with the reduced water content cannot be performed in a natural manner.

Broccoli patent

The “broccoli case” patent (EP1069819) was granted on 24 July 2002 to Plant Bioscience. The patent concerns Brassica oleracea with elevated levels of glucosinolates obtained from selection. The protection is sought for the type of broccoli which comes from crossing wild Brasicca with broccoli double haploid breeding lines deriving from the hybrid selection using molecular markers.

The defendants’ argued that article 53(b) EPC could not be applied in this matter, as the aforementioned crossing was only possible with human intervention. In addition, the use of molecular markers required the removal and analysis of plant tissue.

The Enlarged Board of Appeal had to decide if plant products, such as their parts or seeds could be patented if they were obtained from essential biological processes. Furthermore, the board was to solve a question if the technical feature included in crossing and selection steps made the invention patentable, as well as if that feature was the essence of the invention.

Enlarged Board’s decision

After thorough consideration and discussion, the Enlarged Board made the decision important to EU’s patentability of plants and their parts. Specifically, the Board ruled that plant products, such as seeds, plant parts and fruits, are in principle patentable under the EPC if they result from the biological processes including selection and crossing.

According to the Enlarged Board, the exclusion defined in article 53(b) EPC must be narrowed and cannot be applied to products or “products-by-process”. Therefore, plants obtained from particular biological processes and their fruits are not excluded from patentability.

Impact of the decision

This decision explicitly supports human intervention to the natural biological processes and as a result, paves the way to genetic modification. What is more, the technical feature is not necessarily the essence of the invention. Hence, this simplifies the process of patenting.

Apart from patent proprietors, professional representatives and representatives from large agricultural associations, these cases have also attracted the attention of non-governmental organisations as well as farmers’ organisations which signed the petition against plant and animal patenting. A strike near EPO’s building at the time of the litigation and anti-opposing reaction after the judgement reflect public’s negative view towards the grant of these patents.

The majority believes that the EPO gives support to large agricultural companies and that the grant of these patents paves the way for granting the permission to monopolise food products. As for the small companies, they will have to reduce the assortment of their grown plants as well as surround their fields with tall fences in order to protect their plants from patented vegetable seeds.

On the other hand, this was a well-expected decision. During the litigation process, the EPO received numerous patent applications for plants and animals (over 7500 and 5000 respectively). 3800 patents were granted and 120 of them are related to selection process. It was a priori understandable that the EPO was about to found one more niche.

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