The European Patent Office (EPO) has granted the Heineken and Carlsberg brewing companies three patents for the use of one of the essential ingredients in the production process — malting barley — and all products derived from it, even though the work of the EPO is underpinned by the European Patent Convention (EPC), which expressly forbids the granting of patents in respect of ‘plant or animal varieties or essentially biological processes for the production of plants or animals’.
1. Does the Commission agree with the criticism and disapproval of granting a patent for naturally-mutated malting barley by the EPO?
2. In the Commission’s view, what could be done to combat the EPO’s decision on malting barley and other patents on life?
3. What is the Commission currently doing to protect farmers and SMEs from patents on plants and animals granted to large companies?
The Commission does not take position in respect of individual cases.
The European Patent Office (EPO), which is not bound by EC law, grants patents according to the European Patent Convention (EPC) and its implementing rules. This corpus of law is however inspired by EC law, and Directive 98/44/EC on the legal protection of biotechnological inventions(1) notably prescribes that patents shall be granted neither for plant varieties nor for essentially biological processes.
Patents granted by the EPO may be opposed by any third party during a 9 month-time limit. In addition, prior to the granting of a patent, third parties may also address observations to the EPO regarding the lack of patentability of an application.
On 3 November 2016, the Commission published a Notice on certain Articles of Directive 98/44/EC(2) which, amongst other things, clarified that plants obtained by essentially biological processes are also excluded from patentability.
The content of this Notice was inserted into the implementing rules of the EPC on 29 June 2017 by a decision of the Administrative Council, the legislative body of the EPO.
(1) OJ L 213, 30.7.1998, p. 13.
(2) Commission Notice on certain Articles of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions (OJ C411, 8.11.2016, p.3).