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Difficult to breed patents

March 2011 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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The EPO recently decided that plant breeding methods are not patentable even if based ‎on biotechnology.‎

Conventional plant breeding methods are not patentable in Europe. But the Enlarged ‎Board of Appeal of the European Patent Office recently considered whether this would ‎still be the case if the plant breeding method incorporates a biotechnology-based ‎selection method.‎
A company wanted to patent a method to breed broccoli with improved anti-cancer ‎properties. A foreign government wanted to patent its method for breeding tomatoes ‎with reduced water content. The biotechnological aspect of both methods was the use ‎of genetic markers to select the specimens which were best suited for cross-breeding ‎to obtain the desired effect.
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Biotechnology makes no difference
The Enlarged Board of Appeal held in both cases that the use of biotechnology in a ‎plant breeding method does not make it patentable.‎
However, the decisions did not preclude the patentability of genetic markers used in the ‎breeding methods or any modified gene sequences in the plant DNA.‎

Norrbom Vinding notes:
  • that the decisions of the Enlarged Board of Appeal must be said to be a definite step ‎backward in terms of the possibilities for making biotechnological exploitation ‎commercially interesting; and

  • that the decisions may seem at odds with the EU Directive on the legal protection of ‎biotechnological inventions. It cannot be ruled out, therefore, that the question of the ‎significance of biotechnological aspects of plant breeding methods may be assessed ‎differently in relation to EU law.‎

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