A pair of decisions recently given by the European Patent Office’s top appeal board look at the patenting of advances in plant breeding. This one of several borderline areas between what is patentable and what is not, and the decision is of interest beyond this field of technology. The decisions have been widely welcomed. They indicate a willingness to read Europe’s exclusions from patentability narrowly, so that protection may be more readily available for borderline cases.
What is the exclusion?
In Europe, patents cannot be granted for ‘essentially biological processes for the production of plants or animals’ (Article 53(b) EPC).
The two cases, commonly referred to as Tomatoes II and Broccoli II, involved breeding methods leading to improved plant products. The first related to a method developed by Israeli Ministry of Agriculture of tomato breeding to produce fruit with reduced water content. The second involved a process developed by UK biotech company Plant Bioscience Ltd. This method used molecular markers to select broccoli plants producing high levels of anti-cancer compounds.
The decisions interpret the exclusion from protection narrowly, opening up the potential for protecting a wider range of agricultural and horticultural products. The board ruled that the exclusion of an essentially biological process does not extend to a product claim for the resulting plant material, or a product-by-process claim.
Of course, the patent will still have to define the product appropriately in the claims, and meet the usual requirements for patentability. And note specific plant varieties are themselves excluded from patentability. These qualify for their own separate protection – you can see more on this here.
Two points to note, however. There’s still a requirement to show inventive step, so the disclosure in the patent will have to do enough to support this. And a product by process claim for a resulting plant product may end up being narrow in scope and so of lower value in keeping competitors from copying your research.
But the restrictive approach taken to the exclusion from patentability has been welcomed, and not just in this field of technology.