Oral proceedings on the "tomato" patent

4 November 2011

On 8 November, a technical board of appeal is holding public oral proceedings on the "tomato" patent (EP 1211926). They are part of an appeal case which will result in a decision to maintain the patent, possibly in amended form, or to revoke it altogether. The patent is valid in ten European countries.

In 2000, the Israeli ministry of agriculture applied for a patent on a method for breeding tomatoes with reduced water content and on products of that method. The patent was granted in November 2003, and in 2004 Unilever filed an opposition on the grounds that the patent did not fulfil certain patentability requirements under the European Patent Convention (EPC). Furthermore, it related to an "essentially biological process for the production of plants", which under the EPC could not be patented. The opposition division decided to maintain the patent in an amended form which no longer covered the breeding method.

In August 2006, the patent proprietor appealed against the decision not to grant a patent for the breeding method. The competent technical board of appeal then sought clarification from the Enlarged Board of Appeal, as the EPO's highest judicial instance, of the term "essentially biological processes for the breeding of plants or animals" and of the associated exception to patentability (referral G 1/08).

The Enlarged Board has the task of ensuring uniform application of the EPC and settling points of law of fundamental importance. It joined this case with the "broccoli" one, which raises similar issues.

In its decisions (G 2/07 and G 1/08), issued on 9 December 2010, the Enlarged Board ruled that selection and breeding methods consisting of sexually crossing the whole genomes of plants could not be patented. Nor did the use of molecular markers render such methods patentable.

This ruling is binding on the EPO and its boards of appeal and must now be applied to each individual case. It is also the basis on which the appeal proceedings on the "tomato" patent have been resumed. The technical board conducting them must now decide whether the residual tomato-plant patent fulfils the criteria for patentability. In the oral proceedings before the board, the two parties - the Israeli ministry of agriculture, and Unilever as opponent - will argue their respective cases for maintaining and revoking the patent. The hearing begins at 9.00 hrs.

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