The European Parliament has not digested the decision by which the European Patent Office ruled about the patentability of certain vegetables with specific characteristics (in this case, tomatoes and broccoli), obtained by conventional breeding techniques. Parliament has thus approved by a large majority (413 votes in favor and 86 votes against) a resolution which called on the European Commission to intervene urgently to clarify the actual scope of European legislation on biotechnological inventions.
Few months we had already discussed on this blog ago about this topic: by the Decision issued on 25 March 2015 in proceedings G2/12 (tomatoes) and G2/13 (broccoli), the Enlarged Board of Appeal of the EPO adopted a restrictive interpretation of Article 53 b) of the Convention, that provides for the prohibition to patent essentially biological processes for the production of plants, such as, for example, the intersection.
According to the EPO the patent prohibition in Article 53b) concerns only the biological processes for the production of plants and cannot be extended to products obtained through such processes, also when the products are only obtainable through such conventional methods for which patentability is excluded.
The ultimate effect of this interpretation is that everybody is entitled to patent plants obtained by essentially biological methods, i.e. natural methods.
In commenting the decision of the EPO, at the time we highlighted the inherent contradictions and illogicality of the same: to establish the patentability of plants grown with natural methods is essentially equivalent to circumvent the express prohibition on patenting provisions set forth by Art. 53 b) of the Convention.
The position of the European Parliament
With the resolution passed last December 17, 2015 (text here), the European Parliament seems to endorse our view on this matter (see Whereas, letter. C): “patents on products derived from conventional selection methods or genetic material necessary for conventional breeding can compromising the exclusion provided for in Article 53 letter b) of the European patent Convention and Article 4 of Directive 98/44 / EC “).
The Parliament has expressed “…. concern that the recent decision of the Enlarged Board of Appeal of the EPO in cases G2 / 12 (tomatoes) and G2 / 13 (broccoli) could result in an increase in the number of patents granted by the EPO for natural features that are introduced in new varieties by means of essentially biological processes such as crossing and selection. “
In fact, according to the Parliament plant breeding is an innovative process that has been practiced by farmers and the agricultural community since the birth of agriculture; moreover the variety and non-patented methods of reproduction are important for genetic diversity.
According to the high European institution, then “… it was not the intention of the legislator to allow the patentability of products produced by essentially biological processes, falling within the scope of the Directive”.
Hence the invitation to the Commission to take urgent action to clarify the true scope of the Directive 98/44/EC on biotechnological inventions, in order to ensure legal certainty with regard to the non-patentability of the products obtained by procedures essentially natural.
While the differences between the European institutions in the field of biotechnological inventions seems to exacerbate, we just have to await further developments.