"Broccoli" patent hearing cancelled

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25 October 2011

The EPO technical board of appeal dealing with the appeal against the "broccoli" patent has cancelled the oral hearing scheduled for 26 October in response to recent submissions filed by the parties involved in the case.

Taking into account the ruling of the Enlarged Board of Appeal of the EPO that methods for the production of plants which comprise conventional breeding steps as well as technical ones are not patentable under the applicable European patent law, the patentee has proposed to limit its original patent by excluding the breeding methods. Thus, only the broccoli plants as such remain protected. The two firms appealing the patent made their request for a public hearing conditional on whether the board decides not to follow the proposal of the patentee. Therefore, the board will now issue its reasoned decision in writing.

The board informed the parties and the public of the cancellation of the hearing on 12 October, and with a separate note on the website again on 18 October.

The technical board of appeal competent in "Broccoli" case forms a part of the EPO's second-instance in-house judiciary. It consists of two members with a scientific background and a legal expert. There are currently 28 technical boards of appeal, plus the Legal Board of Appeal, the Enlarged Board of Appeal and the Disciplinary Board of Appeal. The boards are independent from the Office in their decisions and are bound only by the European Patent Convention (EPC).

Oral proceedings in procedures at the EPO are governed by the EPC. They may be requested by the parties involved, or appointed by the EPO, to secure the right of the parties to be heard. Oral proceedings are cancelled if they are no longer required. In those cases the procedure is then continued in writing. This policy is routinely applied by all instances before the EPO wherever appropriate in order to ensure efficiency and effectiveness of the grant procedure. The full disclosure of all documents in the EPO's freely accessible European Patent Register ensures timely information of the interested public.

Background: The "Broccoli" patent

British company Plant Biosciences was granted a European patent (EP 1069819) for a method for the production of plants whereby the level of a potentially anticarcinogenic substance in broccoli plants can be increased.

French company Limagrain and Swiss group Syngenta filed notices of opposition to the patent in 2003 and maintained their challenge in subsequent appeals. They allege, among other things, that the patent protects an essentially biological method of breeding plants excluded from patentability under the European Patent Convention (EPC) binding on the EPO. The technical board of appeal hearing the two appeals stayed the proceedings and referred questions to the Enlarged Board of Appeal (EBA) with a view to obtaining clarification of the term "essentially biological processes for the production of plants (or animals)" and the associated exception to patentability.

Similar questions were referred to the EBA in the case concerning the "tomato" patent (EP 1211926) granted to the Israeli Ministry of Agriculture and opposed by Unilever. It relates to a method for producing tomatoes with reduced water content and on products of that method.

In its decisions on the referrals (G 2/07 and G 1/08), which were issued on 9 December 2010, the EBA, whose task it is to ensure uniform application of the law in the EPC and settle legal matters of fundamental importance, held that selection and breeding methods comprising sexually crossing the whole genomes of plants cannot be patented. The mere use of molecular markers does not render such methods patentable.

Following that ruling, which is binding on the EPO and its boards of appeal, the two appeal procedures were resumed. The board responsible for reviewing the patents granted for the broccoli and tomato plants must now decide whether they meet the patentability requirements and can be maintained. The oral hearing in the "tomato" case is scheduled for 8 November.

Further information

Patent EP1069819 in the European patent register

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