Patenting plants is a controversial area. The grant of a European patent claiming insect resistant pepper plants to Syngenta in May 2013 is churning things up in fields across Europe.
In February this year, Romanian MEP and member of the agriculture committee of the EU parliament Rareş-Lucian Niculescu challenged the EU commission with question on behalf of a Europe-wide group of NGOs and farmers’ and breeders’ organisations. Saying that the claimed plants were derived from a cross between a wild Jamaican plant and commercial pepper plants, he queried whether the patent should ever have been granted.
The response of commissioner Barnier called in aid the 1998 Biotech Directive. That law says that products ‘consisting of or containing biological material or a process by means of which biological material is produced, processed or used’ may be patentable under Article 3. But, in contrast, ‘essentially biological processes for the production of plants’ are not patentable under Article 4(b).
Planting your seed on the right side of the line is tricky. In his response commissioner Barnier mentioned the 2010 rulings of the EPO Enlarged Board in the broccoli and tomatoes cases where a distinction was drawn between plant breeding and something involving an additional technical step. These two cases are now the subject of further review by the EPO's Enlarged Board - pending cases referred to as broccoli II and (case G 2/13) tomatoes II (case G 2/12).
Syngenta's pepper patent is under challenge at the EPO. Opposition proceedings were filed in February by 34 bodies from across Europe, presumably the same group of organisations mentioned by Niculescu in his question.They include Greenpeace Germany, Genewatch UK and the Dutch group Bionext. In August Syngenta requested that the opposition proceedings should be put on hold pending the outcome of broccoli II and tomatoes II.
And now there are reports of an advertisement placed by one of the opponents of the patent, Bionext, in a Dutch newspaper calling for crowd funding of the opposition proceedings.
The pepper patent involves plant breeding together with the identification of genetic material in the pepper plants that are associated with resistance. Will this be enough to supply the additional technical step required? If it does, the barn doors will be flung open to patents for plant-breeding.