no patents on seeds

7/28/2019 No patents on seeds

1/11

President of the European Patent Office gives

green light for patents on plants and animals

Patent office ignores the position of the European Parliament

A briefing by No Patents on Seeds, www.no-patents-on-seeds.orgChristoph Then & Ruth TippeMarch 2013


2/11

| Green light or patents on plants and animals |

Content

Summary

. Introduction 4

. Granting o new patents on plants imminent 5

. Te President o the EPO: backing big industry 6

4. A slap in the ace o the European Parliament 8

5. Consequences or breeders, armers and consumers 9

6. Some demands

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3/11

Summary | Green light or patents on plants and animals |

Summary

Te European Patent Oce (EPO) is once again rushing patents on plants derived rom conventional

breeding through the application procedure. In the coming weeks, around a dozen new patents will

be granted, covering species such as broccoli, onions, melons, lettuce and cucumber. Tis is in strong

contrast to EPO practice last year when only very ew patents were granted due to a pending prece-

dent decision on the patentability o plants and animals (G/).Tis decision has still not been made.

Te granting o urther patents on plants derived rom conventional breeding is also a setback or the

European Parliament, which in May called upon the EPO to stop these patents because they

contravened current European Patent legislation.

Apparently, this new development in patenting has been heavily inuenced by the opinion o the

President o the EPO, Mr Benot Battistelli, who recently gave a clear statement in avour o such

patents, thus clearly backing the interests o companies such as Monsanto and Syngenta. I Battistellis

interpretation o current patent law goes ahead in this orm, it will render meaningless the prohibition

o patents on plant and animal varieties as well as on conventional breeding.

By taking up this extreme position on patents on plants, Battistelli is acting against the interests o the

majority o European plant breeders, the European armers organisations and many other organisa-

tions active or developing countries, the environment and the interests o the consumers.

Te organisations behind the coalition o No Patents on Seeds are extremely concerned because, or

example, Monsanto and Syngenta already own more than 5% o seed varieties o tomato, paprika andcauliower registered in the EU. Tere are concerns that patents on seeds will oster urther market

concentration and make ood supply ever more dependent on just a ew big international companies.

No Patents on Seeds is demanding a stop to the patenting o plants and animals, legal revision o

European Patent laws to exclude patents on plants and animals.


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4 | Green light or patents on plants and animals | 1. Introduction

1. Introduction

Patents on lie have been a controversial issue in Europe or more than years. Te rst patents on

genetically engineered plants and animals were granted in the 98s. Since the year , there have

been more and more patents granted on plants and animals derived rom conventional breeding. Pre-

sently, there are around a such patents on plants, and around applications have been led.

Te European Patent Convention (EPC) patent laws exclude patents on methods or conventional

breeding ( essentially biological processes or the production o plants or animals ). In , the Eu-

ropean Patent Oce (EPO) stopped granting such patents on the grounds o a decision made by the

Enlarged Board o Appeal (decision G/8), which is the highest legal decision making body o the EPO.

However, this decision only concerns patents on processes or breeding, but not the products derived

rom these breeding products. Tereore, another case on a tomato was brought beore the Enlarged

Board o Appeal (G/) in concerning patents on products such as plants, seeds and ruits deri-

ved rom conventional breeding.

Surprisingly, as recent research shows, a whole series o new patents on plants will be granted in .

Whilst in the past, pending decisions at the Enlarged Board o Appeal were very oten a reason to

postpone urther decision making on patents, it appears that the expected decision at the Enlarged

Board (G/) has now become irrelevant the interests o Monsanto, Syngenta & Co have become

predominant at the EPO.

Photo: Public demonstration outside the EPO in November


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2. Granting of new patents on plants imminent | Green light or patents on plants and animals | 5

2. Granting of new patents on plants imminent

Around a dozen new patents that will be granted very soon on plants derived rom conventional

breeding, these include cucumber, lettuce, capsicum, onions, broccoli, rucola (salad rocket), sunower

and melons. Te Examining Division at the EPO has very recently sent out letters to the applicants

intimating that these patents will be granted shortly (procedure according to Rule () o the EPC).

Te only detail missing is a response rom the companies concerned and some payment no urther

legal examination is necessary.

In most cases, these patents cover the plants, seeds and the harvest such as ruits and grains. Te plants

are derived rom conventional breeding using methods such as gene diagnosis (called marker assisted

selection). Te processes or breeding these plants are not regarded as patentable because they areessentially biological. However, the plants, seeds and ruits are considered to be inventions. Te rst

one o these patents (EP 99) on a cucumber with longer shel lie was granted on February

. wo other patents on salad and cucumber are expected to ollow on March .

While the patenting o plants and animals derived rom conventional breeding was never completely

stopped at the EPO, the procedures at the Enlarged Board o Appeal seemed to have a signicant im-

pact on the granting o patents on plants derived rom methods such as marker-assisted selection (also

called SMAR Breeding). In , we identied only three patents that were granted on plants and

seeds that did not involve genetic engineering, while in we have already identied around a dozen

patents where an announcement has been made that they will be granted.

Te new decision- making policy at the EPO will inevitably lead to a rise in patents on animals since

plants and animals are regulated by the same paragraph o the European Patent Convention (EPC),

Art 5(b).

able: Some patents on plants expected to be granted by the EPO in the coming weeks

Number of

patent Company Content

Breeding method/

plants characteristics

Publication of the

date of intention to

grant the patent

EP 4598 Enza ZadenCucumber plant,

virus resistance

Marker assisted

selection

8.8.

(..)*

EP95 Carlsberg Barley,

disease resistanceMutagenesis 4.8.

EP 996 Rijk Zwaan Lettuce plant

Observing

discoloration at

wound surace

.8.

(..)*

EP 65 DupontSunower,

herbicide resistanceMutagenesis ..


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6 | Green light or patents on plants and animals | 3. Te President of the EPO: backing big industry

EP 99 Enza ZadenCucumis sativus

with longer shel live

Marker assisted

selection

4..

(..)*

EP 845 MonsantoCapsicum plant

with virus resistance

Marker assisted

selection6..

EP 6 SyngentaRucola with

male sterility

Marker assisted

selection6..

EP 4 SyngentaCapsicum plant with

pest insect resistance

Marker assisted

selection4..

EP 56 Syngenta Seedless

watermelonsHybrid crossing 9..

EP 59965Seminis/

Monsanto

Broccoli with bigger

head size or mechanical

harvest Hybrid crossing

Hybrid crossing 4..

EP44554Nunhems/

Bayer

Onions, lower pungency,

longer storage

measuring

compounds..

* Date o nal grant i known

3. The President of the EPO: backing big industry

Normally a pending case i ront o the Enlarged Board o Appeal has efects on the urther grants o

new patents which will be afected by the upcoming decision. Te President o the EPO can request

that the examiners take into account a pending precedent case that will inuence the outcome o the

examination. As the experience rom last years show, this was done in many other cases. However in

the case o the pending case G/ it looks like the President has already given green light or patents

on conventional breeding although the case is not yet decided. While indeed only very ew patents

were granted on plants derived rom conventional breeding last year, now the EPO is about to grant a

dozen patents just in a ew weeks.

Tere is no doubt about the opinion o the President in this context. Very recently, Mr Battistelli made

an ocial statement in avour o patents on plants and animals. In a letter on the G/ case sent to

the Enlarged Board o Appeal o the EPO, he made an extreme statement contradicting the wording

o European Patent Law. He stated that Article 5(b) o the European Patent Convention (EPC)

would not be in conict with granting patents on plants: () Article 53(b) does not have a negative ef-

fect on the allowability of product claims to plants.However, the wording o Art 5(b) prohibits patents

on plant and animal varieties as well as patents on the conventional breeding o plants and animals.

I Battistellis interpretation o current patent law is applied, the prohibition o patents on plant and

animal varieties as well as on conventional breeding would become meaningless.


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3. Te President of the EPO: backing big industry | Green light or patents on plants and animals |

Photo: Mr Benot Battistelli, EPO

Similarly to Mr Battestelli, companies such as Monsanto, Syngenta, Dupont and Bayer believe that

plants, seeds and ruits derived rom conventional breeding are patentable. By making this kind o

statement, Mr Battistelli is taking up a position biased in avour o these agrochemical companies,

which already control large parts o the international seed market. Just ten companies own around

5% o the international seed market . Te three biggest companies, Monsanto, DuPont and Syngenta

already control 5 percent o the commercial global seed market.

At the same time, he is in conict with the position o

the majority o European plant breeders (such as European Seed Association, the Dutch organisa-

tion, Plantum, the French plant breeders and the German breeders association, BDP),

the European armers organisations (such as the European armers organisation COPA, the Coor-

dination Paysanne Europeenne Via Campesina, the Federation o Organic Agriculture movements

in Europe IFOAM EU, the German Farmers Organisation DBV, the German dairy armers asso-

ciation, the Spanish Farmers Organisation COAG and the Italian organisation Coldiretti),

many other organisations active or developing countries, the environment and the interests o the

consumers.

1 EC Group (2011) Who will control the Green Economy? http://www.etcgroup.org/content/who-will-control-

green-economy-0

Te wording of Article 53 (b):

European patents shall not be granted in respect of:

plant or animal varieties or essentially biological processes

for the production of plants or animals (...)

Mr. Benot Battistelli:

(...) Article 5(b) does not have a negative efect on the

allowability o product claims to plants.


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8 | Green light or patents on plants and animals | 4. A slap in the face of the European Parliament

4. A slap in the face of the European Parliament

In , the European Parliament and the German Bundestag adopted resolutions urging the EPO

to stop granting patents on plants and animals derived rom conventional breeding. In its resolution

o May on the patenting o essential biological processes the European Parliament calls on

the EPO also to exclude from patenting products derived from conventional breeding and all conventional

breeding methods, including SMART breeding (precision breeding) and breeding material used for conven-

tional breeding.

Photo: Martin Schulz, the President o the European Parliament (rd rom the right) received . signatures against

patents on plants and animals in September .

Te European Patent Organisation is a separate intergovernmental institution with 8 Member States

and is not part o the EU. Nevertheless, the European Parliament is decisive or the patentability o

plants and animals because these are granted on the basis o a EU Directive (Legal Protection o bio-

technological inventions 98/44 EC) which was adopted by the European Parliament in 998.

In a decision taken by the Administrative Council o the EPO in 999, the Directive was adopted

as a part o the Implementation Regulation o the European Patent Convention. Te Directive alsoprohibits patents on plant or animal varieties or on the conventional breeding o plants or animals.

However, there are several exceptions allowed. As a result, there are a number o grey areas in regard to

patents on plants and animals.

In its resolution o May , the European Parliament or the rst time gave a clear interpretation o

the Directive to prohibit patents on plants and animals derived rom conventional breeding. Mr Bat-

tistelli and the EPO have completely ignored this European Parliament resolution, which in essence

should be considered as a binding interpretation o the EU Directive.

2 http://www.europarl.europa.eu/sides/getDoc.do?pubRe=-//EP//EX+A+P7-A-2012-

0202+0+DOC+XML+V0//EN)

Te European Parliament calls on the EPO also

to exclude from patenting products derived fromconventional breeding and all conventional breeding

methods, including SMART breeding (precision

breeding) and breeding material used for conventional

breeding.


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5. Consequences for breeders, farmers and consumers | Green light or patents on plants and animals | 9

5. Consequences for breeders, farmers and consumers

In Europe, increasing numbers o patent applications on plants are being led. Over , patents

have already been granted on plants most o which have been genetically engineered. However, the

share o patent applications or conventional plants has also been increasing or several years now.

Diagram: Number o patents on plants (with and without genetic engineering) applied and granted at the EPO

(accumulated).

Patents on plants and animals interrupt the process o innovation in breeding, block access to essential

plant and animal genetic resources and impede armers activity and reedom o choice.

Furthermore, they oster market concentration, hamper competition, and serve to promote unjust

monopoly rights. Such patents have nothing to do with the traditional understanding o patent law, or

with giving air rewards and incentives or innovation and inventions. Based largely on trivial technical

eatures, such patents abuse patent law, using it as a tool o misappropriation (in efect biopiracy) that

turns agricultural resources needed or daily ood production into the intellectual property o some big

companies.


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| Green light or patents on plants and animals | 5. Consequences for breeders, farmers and consumers

A report published in by Swiss organisations revealed an alarming situation in the EU vegetable

seed sector. According to the report, Monsanto already owns 6% o the tomato seed varieties registe-

red with the Plant Variety Oce o the EU, as well as % o the paprika (sweet pepper) varieties and

49% o the cauliower varieties. A second big vegetable company, Syngenta, owns 6% o the tomato

varieties, 4% o the paprika (sweet pepper) varieties and % o the cauliower varieties. ogether

Monsanto and Syngenta already own more than 5% o the varieties o these three vegetables.Many the recent patent applications are or vegetables it is highly likely that especially these patents

will have an impact on the ood market. Te granting o patents on plants and animals will increase

prices o ood, restrict the choice o armers and consumers and hamper improvements in achieving

better ood crops.

3 http://www.evb.ch/cm_data/Saatgutmarkt_Juni_2012.pd

Patented ood products that are already on the market.

For example a patented broccoli introduced in UK as

Beneorte by Monsanto (EP 6989) in .


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6. Some demands | Green light or patents on plants and animals |

6. Some demands

Just like the banking system, the EPO and the current patent system have proved themselves unable to

sel-regulate. Te EPO is not subject to independent courts. At the same time, the EPO generates con-

siderable revenue rom patent examination and procedural ees - in it was about 9 86 .

As such, it appears that industry is the client being served by the EPO. Staf at the EPO and patent

attorneys all benet rom the patent industry that produces patents and earns money rom granting

and opposing patents. President Battistelli even introduced a bonus or the EPO staf, including exa-

miners, to distribute their prot. A good incentive to grant as many patents as possible.

In the light o these observations, it is absolutely crucial that the interests o society are saeguarded by

politics. Tere are several political instruments that can be used to control the EPO, and make surethat especially the interests o armers, breeders and consumers are no longer disregarded:

. Te European Patent Convention (EPC), which is the legal basis or the European Patent Oce,

should be changed to exclude plants and animals and parts thereo. For this purpose, a diplomatic

conerence should be requested by the member states o the EPO.

. o eliminate the many grey areas in current European patent law, the European Patent Directive

98/44 should be changed so that it excludes patents on plants and animals and parts thereo .

. Te Administrative Council o the EPO, which is the body representing the member states o the

EPO, should change the wording o the Implementation Regulation in a way that is in accordancewith the resolution o the EU Parliament to prohibit patents on conventional breeding in plants

and animals.

4. A ull comprehensive breeders exemption and the respect o armers rights should be established

in the EU patent law.

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