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Broccoli and tomato patent cases - no decision yet
Our Bureau
Date of posting: 21-07-10
      The European Patent Office in Germany discussed on Tuesday about what is a “biological method” in a hearing about the tomato and broccoli cases for which patents had been issued by the European Patents Office (EPO) in 2002 and . A decision is expected only for later the year. Outside the office, more than 200 people demonstrated.

      The core question of the broccoli case is whether a marker-assisted selection of genes is a "biological breeding process" or a technical method. If its a technical method, then it is patentable, and this itself leads to a bulk of consequences for the seeds, plants, and licence fees and consumer prices later on. Interestingly, the main opposition to the patents which have been granted earlier is coming from competing companies.

      In order to be able to rule on patentability, the fundamental issue of how to construe the term "essentially biological processes for the production of plants or animals" had to be settled first, said the technical board of EPO which was looking into the cases first in 2007.

      In 2002, the company Plant Bioscience Ltd. was granted a patent (EP 1069819) on a method for selectively increasing the level of a potentially anticarcinogenic substance in broccoli plants. The method involves locating the relevant genes on the broccoli genome and identifying them with genetic markers. Then broccoli lines containing the desired substance are selected by means of these markers and used in plant breeding. Although this method involves conventional breeding steps, the EPO has hitherto deemed marker-assisted selection to be a technical process and therefore patentable, the EPO informs.

      In April 2003 the Swiss company Syngenta Participations AG filed notice of opposition to the patent, on the grounds that under the applicable provisions of the European Patent Convention (EPC) the patented selection method was an essentially biological process and therefore not patentable. This opposition was now at the appeal stage before one of the EPO's technical boards of appeal.

      Tomato Patent EP 1211926 is a similar case: in 2000 the Israeli Ministry of Agriculture applied for a patent on a method for breeding tomatoes with reduced water content and on products of that method. In 2004 the Dutch company Unilever N.V. filed notice of opposition to the granted patent and called for it to be revoked on the same grounds as in the broccoli case. This case too is currently before an EPO appeal board.

      The technical board responsible for both appeals deemed that the fundamental issue of how to construe the term "essentially biological processes for the production of plants or animals" had to be settled before it could rule on the patentability of the two applications. In 2007 it referred questions on that subject to the EPO's Enlarged Board of Appeal. As the two cases raise similar issues, the Enlarged Board is considering them in consolidated proceedings.

      The public opinion in Europe seems to be against patents on plants or animals. Environmental pressure group Greenpeace is said to have collected already 100,000 signatures for a ban on patents on seeds, plants and animals. According to Greenpeace, 80 patents on conventional plants have already been granted, and 1000 more applications would be pending. The German government has a clear stand against such patents, as this is mentioned in the coalition treaty of the three ruling parties. The German farmers union says that the traditional breeding methods - used since hundreds of years - have to be kept free from any patents. It should not happen that crossing and selection steps to become patentable, only because these would be connected with a small, not even necessary technical element. The farmers union wants the German government to find a majority in the EU for an amendment of the EU-bio patents guidelines.

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