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No Patents On Seeds

Patent Cases

The European Patent Office (EPO) has already granted many hundreds of patents on genetically engineered plants and animals (see statistics) and has even started to grant patents on normal, non modified plants .

However, legally speaking, there is still uncertainty on where patentability ends. Both the EPC and the EU directive 98/44/EC set limits to patentability of living organisms. Nevertheless, the EPO has repeatedly granted patents which clearly go behond these limits. Some of them have been revoked following an opposition procedure. In other cases the EPO has interpreted the laws in such a way as to undermine the limits of patentability.

Here we present the most important patents which have been disputed and which are important for the development of case law in the area of plants and animals.

» Patent on Brocoli – Plant Bioscience Ltd
One of the precedent cases at the European Patent Office (G2/07) After starting the Broccoli case in 2007, a second case related to “essentially biological processes for the production of plants and animals” (Art 53b of the European Patent Convention) was forwarded to the Enlarged Board of Appeal of the European Patent Office in May 2008. The patent EP 1211926 on tomatoes is owned by the Ministry of Agriculture of the State of Israel. Both cases were joined and in december 2010 the Enlarged Board of Appeal ruled that methods for conventional breeding of plants and animals cannot be considered as a technical process and therefor cannot be covered by patents. Both cases wre referred back to the Board of Appeal for individual rulings. On Oct 26, 2011 the hearing on the broccoli was annuled, because the parties came to an agreement. On November 8th, 2011 the Board of Appeal held the hearing on the tomato and decided to refer the case once again to the Enlarged Board of Appeal, for a ruling on whether or not "products" (i.e. the plants) derived by methods of conventional breeding are also excluded from patentability. The ruling by the Enlarged Board of Appeal will be decisive and final. The exact questions to be put before the Board are not yet known. The procedure might take upto two years.
» Patent on Wrinkled Tomato – State of Israel - Ministry of Agriculture
One of the precedent cases at the European Patent Office (G1/08) After starting the Broccoli case in 2007, a second case related to “essentially biological processes for the production of plants and animals” (Art 53b of the European Patent Convention) was forwarded to the Enlarged Board of Appeal of the European Patent Office in May 2008. The patent EP 1211926 on tomatoes is owned by the Ministry of Agriculture of the State of Israel. Both cases were joined and in december 2010 the Enlarged Board of Appeal ruled that methods for conventional breeding of plants and animals cannot be considered as a technical process and therefor cannot be covered by patents. Both cases wre referred back to the Board of Appeal for individual rulings. On Oct 26, 2011 the hearing on the broccoli was annuled, because the parties came to an agreement. On November 8th, 2011 the Board of Appeal held the hearing on the tomato and decided to refer the case once again to the Enlarged Board of Appeal, for a ruling on whether or not "products" (i.e. the plants) derived by methods of conventional breeding are also excluded from patentability. The ruling by the Enlarged Board of Appeal will be decisive and final. The exact questions to be put before the Board are not yet known. The procedure might take upto two years.
» Patent on Pigs – Newsham Choice Genetics
This patent was revoked after oppositions and public protests.
» Patent on Cows
The opposition against this patent is still under negotiation at the EPO (T1589/10)
» Patent on Sunflowers – Consejo Superior de Investigaciones Cientificas
Opposition was rejected, only claims for process of breeding were revoked (T1854/07).
» Patent on Melons – Monsanto
» Patent for breeding plants with a higher stress tolerance – Bayer BioScience
The comprehensive patent will give Bayer monopoly control over important food crops.

 

More patents can be found here