Press information: European patent EP-B-0 445 929

"Biscuit patent"

Munich, 27 January 2004 – European patent EP-B-0 445 929, which was granted by the European Patent Office (EPO) on 21.05.2003, relates to soft-milling wheat producing flour with favourable baking properties. The patent owner is Monsanto Technology LLC, St. Louis/USA. The patent protection covers 13 of the 27 contracting states of the European Patent Organisation. An essentially identical patent was granted inter alia by the US Patent and Trademark Office for the USA.

The patent

The patent is based on an invention in the field of food technology. It describes the transfer of particular genetic features from hard-milling to soft-milling wheat. Flour from hard-milling wheat is primarily used in making bread, whereas flour from soft-milling wheat is used in preparing dough and batter for making biscuits, crackers, etc.

According to the patent specification, the transfer of characteristic genetic combinations is made using conventional crossing techniques. Flour and dough obtained from the wheat described in the patent display favourable characteristics in the making of biscuits, crackers, etc.

The claims, which determine the patent's scope of protection, are directed to the wheat, the flour and dough obtained from it and the resulting foodstuff.

Patentability of biotechnological and agricultural inventions

Biotechnological and agricultural inventions are, in principle, patentable. Plants, for example, are not excluded from patentability if performance of the invention is not technically restricted to a particular plant variety. This is made clear in the European Patent Convention (EPC), which forms the legal basis for the granting of patents by the EPO, and in the EU bio-patent directive (98/44 EU) which, following a decision by the EPO member states, has been incorporated into the EPC since 1999.

Food technology accounts for about 1% of European patent applications. The International Patent Classification (IPC) includes baking methods and products such as edible doughs, as well as bakery products.

The EPO opposition procedure

The EPC provides for anyone to oppose an EPO patent within nine months of grant. The opposition has to be filed in writing and the reasons have to be stated. An opposition covers all the contracting states in which the European patent is valid. At the end of the opposition proceedings involving the opponents and the patent owner, an EPO opposition division decides, in a quasi-judicial procedure based on the EPC, whether the contested patent is to be maintained, amended or revoked. The opposition division normally comprises three technically qualified examiners. In specific cases, a lawyer can be added.

The opposition division's decision can be contested in second-instance proceedings before one of the EPO's technical boards of appeal. About 6% of the European patents granted each year are opposed.

The EPO's activities are made as transparent as possible. Once a European patent application has been published, anyone can inspect the file online and thereby follow the grant proceedings. The file contains the communications issued by the EPO, the applicant's replies and any amendments made to the application. File inspection is possible online via the epoline® service. The file for European patent EP-B-0 445 929 can be inspected at
http://ofi.epoline.org/view/GetDossier?dosnum=91301272&lang=en
Access to all published European patent applications and patents is also available free-of-charge on the Internet via esp@cenet®.

Information for journalists:

European Patent Convention

The European Patent Office grants patents solely on the basis of the European Patent Convention . The EPC provides for patent applications to be processed according to a single grant procedure. Under the EPC, patents can be granted only for inventions that are new, inventive and industrially applicable.

European patent applications can be filed direct with the EPO or via an international patent application under the Patent Cooperation Treaty (PCT). The PCT is an international patent treaty enabling a patent applicant to obtain patent protection in 122 countries by filing a single patent application.

Who can file a European patent application?

Any person or company can file an application for a European patent (Article 58 EPC) . The entitlement to apply for European patents is therefore unrestricted. Whether a patent is actually granted is decided in the course of the examination procedure.

EPO examination procedure

Under the European patent grant procedure, applications are examined to see whether or not they are patentable. In contrast to the procedure in some countries where patents are merely registered, the EPC stipulates a thorough examination of patent applications. A European patent is granted only after the EPO has examined whether the substantive and formal requirements have been met.