Reaction was mixed to the decision of the Enlarged Board of Appeal (EBA) of the European Patent Office, which determined that plants or plant products produced by conventional breeding are not excluded from patentability.
Two cases (one involving broccoli and the other tomatoes) were referred to the EBA to obtain clarification on whether plants or plant products produced by an excluded process are also excluded from patentability.
The broccoli patent belongs to PBI, a company in the United Kingdom, while the tomato patent is assigned to the State of Israel.
The clarification of the scope of the protection for plants and plant products is welcome news, according to Monsanto Europe-Africa.
“It underlines the value to society of public and private innovation in plant research,” according to the company’s blog. “The patent system is society’s way of encouraging innovation and fairly balancing the interests of inventors and wider society. The patent system is very successful at supporting and stimulating innovation in many fields from phones to cars, buildings, computers and medicines, to name just a few. We are pleased the European Patent Office agrees the benefits of patenting should be available to transformational plant breeders so society can reap the benefits from more innovative crops, delivering better harvests using less resources.”
PBL agrees.
“The decision … is welcome news as it provides much-needed clarity on the scope of patent protection in the European Union for plants and plant products,” reports PBI in a statement. “The broccoli patent has been seen as something of a test case and this decision represents an important step towards encouraging much-needed innovation in agriculture and horticulture in the European Union.”
However, the European Seed Association (ESA) expressed disappointment with the decision.
“It seems that the Enlarged Board of Appeal chose a very narrow and legalistic interpretation of the issue in question and consequently decided in favor of patentability of plants, rather than restricting it,” says Garlich von Essen, ESA secretary general. “The breeders’ exemption is the cornerstone of a system that successfully balances the protection of individual intellectual property with the common interest of society to introduce innovation broadly and quickly by allowing free access for further research and breeding. This decision has the potential to not only restrict this free access to quite a number of products, but also to generally discourage breeding efforts in areas covered by such patents in the future.”
Von Essen adds that ESA is calling for “an effective breeders’ exemption, and that means an effective exclusion from patentability of not only plant varieties and essentially biological processes but also of plants obtained by such processes. While we support the patentability of true biotechnological inventions, this ruling is shifting the boundary between the two systems in favor of patents. We therefore now have to work for suitable initiatives and measures to shift that boundary back.”
