As can be seen from an article in the Standard(1) dated 15 February 2016, the Swiss company Syngenta has been granted a patent on tomatoes with an increased flavonoid content. The agro-industrial group has thereby secured a patent on the seed, the plant and the fruit from the European Patent Office (EPO), although the European Patent Convention stipulates that patents may not be granted in respect of plant varieties or fundamentally biological processes involved in plant breeding. The fact that the company was able to patent the properties of a plant points to a loophole caused by the loose formulation of the law. What is more, the EPO earns money whenever a patent is granted, which has created further false incentive.
1. Is the Commission aware that it is possible to bypass European Patent law and, since it is not only a question of granting patents but also of protecting plant varieties, should this gap not be closed?
2. In the interests of offering small breeders protection in the face of the market power of large corporations and to avoid empowering their monopolies through patents, does the Commission believe that the gap ought to be closed?
Directive 98/44/EC on the legal protection of biotechnological inventions harmonises national patent laws regarding biotechnological inventions(1). According to this text, plant varieties, as well as essentially biological processes for the production of plants consisting entirely of natural phenomena such as crossing or selection, are not patentable.
The Enlarged Board of Appeal of the European Patent Office (EPO) has taken some decisions which allow patenting of plants and plant parts obtained by essentially biological processes. The Commission is fully aware of the breeders’ concerns raised by these decisions.
The Commission has tasked the Biotech expert group(2) to provide it with legal and technical expertise on pertinent issues linked to the application of Directive 98/44/EC(3). Once the group’s report(4) is finalised, the Commission will consider the possible need for any measures in this area.
In this context, the Commission welcomes the recent establishment of cooperation between the European Patent Office and Community Plant Variety Office(5). The Administrative Agreement that has been signed between these two institutions can be regarded as a first step to improve the assessment of patentability criteria of plant-related inventions.
(1) It essentially clarifies the distinction between what is patentable and what — on ethical grounds — is not.
(2) C(2012)7686 final of 7.11.2012.
(3) A large number of the issues examined relate to plant inventions, including the relationship between the application of patents and plant variety rights.
(4) The report will comprise three parts: the patentability of human stem cells, patentability of plant-related inventions and scope of protection for DNA-related inventions.
(5) See: www.epo.org/news-issues/news/2016/20160211a.html