British company Plant Biosciences was granted a European patent (EP 1069819) for a breeding method 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 breeding 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 consisting of sexually crossing the whole genomes of plants cannot be patented. Nor does the mere use of molecular markers 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.
Mr Rainer Osterwalder
Director Media Relations
European Patent Office
Tel: +49 89 23 99 18 20
Fax: +49 89 23 99 28 50