On Broccoli, tomatoes and patents

Last December 2010, the Enlarged Board of Appeal of the EPO issued a decision on the subject whether a method involving crossing and selection of broccoli could be patentable (G2/07). Simultaneously, a referral was made to a similar case concerning the crossing of selection of tomatoes (G1/08). It took the Enlarged Board almost three and a half years to issue decisions relating both referrals, in a decision already generally known as "Broccoli and Tomatoes".

In short, the Enlarged Board decided that:

1. A non-microbiological process for the production of plants which consists of the steps of sexually crossing and subsequently selecting plants is in principle excluded from patentability as it is purely seen as being "essentially biological" (Article 53(b) EPC).

2. If such a process contains a step of a technical nature which serves to enable or assist the performance of the steps of sexually crossing or selecting plants, such a process will not escape this prohibition.

3. If, however, such a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then the process is not excluded from patentability under Article 53(b) EPC.

4. In the context of examining whether such a process is excluded from patentability, it is not relevant whether a step of a technical nature is a new or known measure, whether it is trivial or a fundamental alteration of a known process, whether it does or could occur in nature or whether the essence of the invention lies in it.

Patent EP 1 069 819 of Monsanto, relating to broccoli with increased anticarcinogenic levels of glucosinolates was opposed by several parties, amongst them Syngenta. The patent relates to a conventional method of crossing and selecting broccoli. A broad range of organizations, such as No Patents on Seeds were preparing a demonstration against patents for plants and animals on the date set for oral proceedings (26^th of October 2011). Surprisingly, these proceedings have been cancelled by the EPO on request of the opponents. Since the patentee has proposed an amended set of claims, now limited only to the broccoli plant and its seeds, excluding all breeding methods, opponent Syngenta did not see any necessary reason to continue with the oral proceedings and requested an issue in writing. It is likely to assume that the Broccoli patent will be maintained based on the amended set of claims proposed by the patentee.

Organization No Patents on Seeds believes that the EPO as well as the industry shy away from any public spotlight by rather cancelling the oral proceedings thereby avoiding any planned demonstration.

However, a second chance for demonstrations is on its way, as similar oral proceedings related to patent EP 1 211 192 6 ("Tomatoes"), scheduled for November 8^th are still on track. In the latter, the patentee equally excluded all breeding methods, now limiting the claims to the tomato only. It remains to be seen which route the tomatoes will take...to be continued...