The longstanding legal saga on patentability for plants obtained by conventional biological processes has been seemingly put to an end after the Enlarged Body of the European Patent Office (EPO) published an opinion upholding the EU’s standpoint.
On 14 May, the EPO’s highest judicial authority U-turned on its previous decisions by advising against offering the possibility to patent plants and animals which have been exclusively obtained by means of an essentially biological process.
In its new opinion, the EPO’s body adopted a “dynamic interpretation” of the exception to patentability that overturns an earlier interpretation of Article 53(c).
It justified this on the basis that that European patents cannot be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.
The EU executive welcomed this as a positive development since it aligns with its own position, a Commission source told EURACTIV.com.
The decision comes after a lengthy debate on the matter, starting back in 2015 when the EPO, which is not an EU body, broached the possibility of granting patent protection to conventionally-bred plants.
This occurred after various attempts were made to register conventionally-bred crops, such as tomatoes with reduced water content by the consumer goods giant Unilever and broccoli growing with a selective increase of the anticarcinogenic glucosinolates by the global agrochemical company Syngenta.
On 3 November 2016, the Commission stepped in by adopting a notice that excluded products obtained by ‘essentially biological’ processes from patentability, which was backed up by the EU Competitiveness Council in its 20 February 2017 conclusion.
In June 2017, the EPO accordingly adopted the new Implementing Rule 28(2) to the European Patent Convention (EPC) in compliance with the Commission’s legal clarification.
However, on 5 December 2018, EPO’s Board of Appeal concluded that this new implementing rule conflicted with the corresponding Article 53(c) of the EPC.
This effectively authorised patents to be granted for plants obtained by ‘essentially biological’ processes and, at the time, the EPO’s technical board argued that the EPC takes precedence over EPO implementing rules.
Since then, the European Commission and a number of member states have called for the restoration of the previous status quo, namely that no patents be granted for such plants.
One vocal critic of the patentability of such crops is MEP Annie Schreijer-Pierik, who has been the initiator of many resolutions in which the European Parliament continuously opposed granting patents on plants and essentially biological processes since the issue was first raised back in 2015.
Schreijer-Pierik told EURACTIV that she welcomed EPO’s new stance, saying that crops such as broccoli, tomato and their natural properties should not become exclusively owned by some multinationals.
“Nature, food crops and also fruit and vegetables belong to all mankind. This statement is vital for innovation in the plant breeding sector and for food security in a time of climate change and rising global food demand,” she stressed.
In September 2019, Schreijer-Pierik co-initiated the Parlament’s latest non-legislative resolution on the matter, after the technical board of appeal at EPO sought to annul an earlier ban on plant patents in December 2018.
The non-legislative resolution adopted in Strasbourg was scathing about the EPO, saying their internal decision-making rules “must not undermine democratic political control of European patent law and its interpretation and the legislator’s intent.”
“The so-called breeder exemption was always sacred to us and is now also legally indisputable,” said Schreijer-Pierik, explaining that patents on essential biological processes have always been ruled out by the European Parliament.
Euroseeds, the EU seeds industry organisation, hailed the EPO’s interpretation as “a true landmark decision for plant breeding,” adding that it finally provides the legal clarification on a matter that has been disputed for years and caused much uncertainty for breeders in their daily work.
“We are glad that the Enlarged Board provided this clarification in such a timely manner – and we are hopeful that the application of Rule 28(2) will now resume very shortly,” said Euroseeds’s secretary-general Garlich von Essen.
However, the new interpretation has no retroactive effect as it only applies to applications and grants after 1 July 2017, the date of entry into force of Rule 28(2).
As regards this aspect, Euroseeds warned it was unclear how national jurisdictions will now view the validity of those patents granted or applied for before the entry into force of Rule 28(2).
[Edited by Zoran Radosavljevic/ Natasha Foote]