2011 CIOPORA Chronicle - the 50th Anniversary Edition

Tjeerd Overdijk says, "A more promising route to a solution might be offered by
more liberal rules regarding compulsory licensing." (Photo Geert Snoeijer)
result that it precludes the national
patent legislation from offering
broader (absolute) protection to the
patented product as such.
Then, just before the end of last
year, we saw the conclusion of an
ongoing debate on the eligibility for
patent protection of certain breeding
methods in the so-called "broccoli"
(G 2/07) and "tomato" (G
1/08) cases. These cases concerned
patent applications for breeding
methods involving steps of crossing,
collecting hybrid seeds, growing
plants therefrom, pollination and
combined with screening methods
including (in the broccoli case) the
use of molecular markers (RFLPs)
for the purpose of identifying
desired hybrids.
In both cases the Enlarged Board
of Appeal gave an important ruling
on the meaning of the exclusion of
essentially biological processes as
referred to in article 53 (b) EPC.
In its decision the Board concluded
that a process for the production of
plants involving sexually cros sing
whole plant genomes, and the
subsequent selection of plants is not
patentable. The mere inclusion of
steps which serve 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. While
technical devices or means, such as
genetic markers, may themselves be
patentable inventions, their use does
not make an essentially biological
process patentable.
Substantial influx
One might think that the decisions
passed at the European level in the
three mentioned cases will severely
restrict the reach of patents into
the breeding world, but the effect
must not be overestimated. Even
though we have had some clear
guidance from the European Court
and the EPO on what should be
deemed outside the scope of patent
protection, this is not the end of
patents for plant breeding or plants
resulting from breeding work.
Since (roughly) the beginning of
this century we have extended
possibilities for patenting biotech
inventions, which has lead to a
substantial influx of patent rights
in the world of plant breeding. It
seems that an astonishing number
of 4,500 patent applications related
to plants have been filed over the
last 10 years that involve biological
material, including gene sequences
and plants.
This is an issue of increasing
concern for plant breeders, simply
because there is no breeders’
exemption which secures access
to patented germplasm. In case an
improvement is subject to a patent,
the rest of the world has to wait 20
years before it can be freely used.
There are also reports of companies
that have requested their competitors
to abandon plant breeding programmes
which allegedly infringe >>>
CIOPORA Chronicle April 2011 | www.CIOPORA.org 21