2012 CIOPORA Chronicle

Photo credits: Selecta Klemm
Pelargonium breeding section at Selecta Klemm.
Dr. Gert Würtenberger
case the additional question had to
be answered whether application
of markers in the breeding process
per se is an element which allows
the conclusion that the breeding
method was not of an essentially
biological nature.
European Patent Office
The enlarged Board of Appeal of
the European Patent Office which
was asked to decide on these issues
emphasised that a non-microbiological
process for the production
of plants which contains or consists
of the steps of sexually crossing,
the whole genomes of plants and of
subsequently selecting plants is in
principle excluded from patentability
as being essentially biological.
The fact that such process contains
steps of crossing and selection
which have to be regarded as
technical in their nature does not
change the qualification of the
afore-mentioned steps as essentially
biological. In contrast, if an additional
step of a technical nature
such as introduction of a trait into
the genome or a modification of
a trait in the genome of the plant
produced, such process would not
be excluded from patentability. The
introduction or modification of
such a trait would not be regarded
as result of the natural mixing of
the genes of the plants chosen for
sexual crossing.
Decision
In light of the decision of the enlarged
Board of Appeal of the European
Patent Office it is clear that
if the desired change of the plants
is solely based on sexual crossing,
the process is excluded from
patentability. Although crossing,
selection, backcrossing and further
steps in the breeding process
involve human interference, the
process as such nevertheless has to
be regarded as essentially biological
as it mainly depends on natural
phenomena.
On the other hand, a process
involving inserting a gene or trait
into a plant by genetic engineering,
in principle, is patentable as it does
not rely on recombination of whole
genomes in the natural mixing of
plants. However, such a claim may
not contain crossing and selection
steps. Otherwise, such a process
would be regarded as essentially
biological and, thus, excluded by
law from patentability.
Case-to-case basis
The decisions of the enlarged
Board of Appeal of the European
Patent Office, thus, have brought
some clarification to the extent
to which breeding methods or
methods creating new plant material
not limited to specific plant
varieties will be open to patent
protection. The problem remains,
however, what the necessary additional
technical interference within
the method of sexual crossing and
selection needs to be in order to
make such process open to patent
protection. For the time being, this
can only be decided on a case-tocase
basis. |||
CIOPORA Chronicle April 2012 | www.CIOPORA.org 31