July 2007: The Brokkoli Case is taking its next step:
The European Patent Office (EPO) is now preparing for the Enlarged Board of Appeal (G2/07)

In a written decision (T0083/05-3304) the Technical Board of Appeal is now presenting the official questions which will now be answered by the Enlarged Board Board Of Appeal (the highest chamber of the EPO) within the next possibly 1-2 years. The decision of the Enlarged Board Of Appeal (which will be published as G2/07) is likely to be highly relevant for the future patentability of normal plants and animals in Europe.

These are the questions which will be directed to the Enlarged Board:

1. Does a non-microbiological process for the production of plants which contains the steps of crossing and selecting plants escape the exclusion of Article 53 (b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, an additional feature of a technical nature?

2. If question 1 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53 (b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level?

So the real question is: Can a process of breeding normal plants (and animals) be seen as an technical invention in the sense given to this in patent law? Or, in other words, if I make a gene diagnosis in a pig or rice plant, can I become the inventor of pigs and rice plants? The answer seems to be NO in any real life circumstances, but might be turned into a YES in terms of patent law.

The question as forwarded to the Enlarged Board of Appeal results from basic ambiguities in European patent law, which excludes "essentially" biological methods for the breeding of plants animals. The meaning of "essentially" biological is then defined as "entirely" based on natural phenomena such as breeding and selection. Hard to understand? Yes. As the Technical Board writes in its own decision:

"The wording of Article 2 (2) Biotech Directive and Rule 23b (5) EPC is, in the view of the board, somewhat difficult to understand. On the one hand, only processes which consist entirely of natural phenomena are considered to be essentially biological processes for the production of plants. On the other hand, crossing and selection are given as examples of natural phenomena. This appears to be self-contradictory to some extent since the systematic crossing and selection as carried out in traditional plant breeding would not occur in nature without the intervention of man." (pages 36-7, paragraph 53).

This quotation clearly shows that European patent law should be debated in broader public, by parliaments and governments again. It is not acceptable that the Patent Office can just pick and choose in each case which interpretation is best suited to the interests of the industry. Patents on seeds and animals should be excluded from patentability without any loophole, on a global scale. Further the European Patent Office has to be aware of the general intention and general framework of the patent law in Europe. It is crystal clear that the legislator (such as the European parliament or the contracting parties of the European Patent Convention) wanted to exclude patents on plants and animals derived from normal breeding - even if the wording in rules and paragraphs is not consistent in each and every detail.

Since the questions are now forwarded to the Enlarged Board of Appeal, the official procedure in this case will soon be started by a publication in the official EPO journal. A date for written observations of third parties will also be given in the journal. The president of the EPO will also be invited to make a statement.

Read the full document of the EPO's decission dated 22 May 2007:

Decision_of_technical_board 1.71 Mb