The European Patent Office has <a href=“”https://blogs.nature.com/news/thegreatbeyond/Broccoli%20patent.pdf">overturned two controversial patents granted a decade ago on methods for breeding broccoli containing anticarcinogenic compounds and tomatoes with a reduced water content.
The broccoli patent was filed by Plant Bioscience Ltd, a plant science company based in Norwich, UK and the tomato patent by the Israeli Ministry of Agriculture. The broccoli and tomato varieties are produced using conventional breeding techniques but also use genetic markers to locate and indentify key genes to breed the varieties with the desired traits.
According to EU law, biological processes for the production of plants or animals are not allowed to be patented. But the law regards marker-assisted selection as a technical process, and therefore patentable. The broccoli and tomato patents were awarded on this basis.
Since their approval, industry, including the Swiss agribusiness Syngenta, has contested the patents arguing that they didn’t cover just the genetic markers but also the commonly used breeding techniques. They say the breeding techniques should be regarded as a biological process, and so the patents should not have been awarded. Industry was concerned that they would have to pay the patent holders for permission to use the breeding technique.
After years of appeals and hearings, the cases reached the EPO’s Enlarged Board of Appeal, its highest level of jurisdiction. In a ruling on 9 December, the board agreed with industry that the patents covered the whole selection and breeding process and therefore should not be allowed.
In a statement, the board says, “While technical devices or means, such as genetic markers, may themselves be patentable inventions, their use does not make an essentially biological process patentable.”
“A process for the production of plants involving sexually crossing whole plant genomes, and the subsequent selection of plants is not patentable. The mere inclusion of a technical step which serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants or of subsequently selecting plants does not override this exclusion from patentability,” it adds.
This decision does not affect the patentability of inventions or technical steps such as genetic markers.
Gareth Morgan, an intellectual property lawyer based at the London offices of DLA Piper, a legal service provider, says the ruling helps “clarify the law”. But he says it will change little about the day to day practices of plant scientists or breeders.
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