In 2015 the European Patent Office granted patent No. EP 1515600 to Syngenta, which claims to have created a new breed of tomato with a high content of compounds called flavonols. The patent covers the plants, the seeds and the fruit. However, the patented breed appears to be the product of simply crossing tomatoes from Latin America with other varieties, grown in most industrialised countries.
It is noteworthy that current European patent legislation prohibits patents on plant varieties and on conventional breeds.
However, according to the information which is publically available, nearly 1 400 patent applications on conventional breeds have so far been filed at the European Patent Office and nearly 180 patents on conventionally bred plants have already been granted.
1. Is the Commission aware that the European Patent Office grants patents which are very likely to be in conflict with European patent legislation?
2. Is the Commission taking any action to solve this possible problem?
1. The European Patent Office (EPO) is the executive body of the European Patent Organisation(1), an international organisation which grants European patents potentially having effect in up to 38 European States(2). The EPO applies the provisions of the European Patent Convention (EPC) and its Implementing Regulations(3). The EPO is not an EU institution. However, it has implemented most of the provisions of Directive 98/44/EC on the legal protection of biotechnological inventions.
2. The Enlarged Board of Appeal of the EPO decided in 2015 that plants and plant parts obtained by essentially biological processes are eligible for patent protection if the substantial requirements for patentability are fulfilled(4). The Commission is aware of breeders’ concerns raised by these decisions, and announced at the 18 May 2016 Presidency Symposium ‘Finding the Balance between patents and plant breeders’ rights’ its intention to prepare, before the end of 2016, a Notice which will clarify the intention of the EU legislator in respect of specific provisions of the directive. This was requested by a European Parliament Resolution on patents and plant breeders’ rights in 2015. The Commission will inform the European Parliament once this Notice is finalised. While the Notice will provide guidance, only the Court of Justice of the European Union can provide a binding opinion on this directive.
(1) The second political organ of the European Patent Organisation is an Administrative Council, which supervises the EPO activity and is composed of representatives of the EPO Member States.
(2) The 28 EU Member States plus 10 other European countries, namely Switzerland, Turkey, Norway, Iceland, Serbia, Albania, former Yugoslav Republic of Macedonia, San Marino, Monaco and Lichtenstein.
(4) An invention has to be novel, involve an inventive step and have industrial applicability. In addition, the subject-matter must be regarded as patentable.