The European Patent Office (EPO) is granting more and more patents on plants resulting from conventional cross-breeding. A final decision is currently pending on a patent on tomatoes with reduced water content (EP1211926). This patent, together with a patent on broccoli (EP10698190), has attracted international attention and sparked intense controversy. In March 2015, the EPO used these two cases to create a precedent under which plants and animals derived from conventional cross-breeding are defined as patentable. More than a thousand patent applications concerning plants improved through traditional breeding are now pending.
Bearing in mind that Article 53(b) of the European Patent Convention (EPC) prohibits patents on plant varieties and on essentially biological production processes, and taking account of Parliament’s resolution of 10 May 2012 on the patenting of essential biological processes (2012/2623(RSP), which calls on the EPO to exclude products derived from conventional breeding and all conventional breeding methods from patenting, what steps will the Commission take to curb this private appropriation of biodiversity?
The Commission takes note of the outcome of the decisions issued by the Enlarged Board of Appeal of the European Patent Office (EPO), which allow patenting of plants and plant parts obtained by essentially biological processes. The Commission is closely analysing the content of these decisions in the light of the breeders’ concerns that are related to the patentability of plants obtained through an essentially biological process. The Commission has commissioned an expert group (Biotech Expert Group) to report on the development and implications of patent law in the field of biotechnology and genetic engineering. The Commission is also exploring workable and well balanced solutions on the interplay between patent law and plant breeders’ rights that would address the breeders’ concerns without revising Directive 98/44 on the legal protection of biotechnological inventions (the Biotech Directive). In addition, discussions on cooperation between the European Patent Office and the Community Plant Variety Office regarding administrative and operational activities of common interest have been launched.