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Intellectual Property Law

: IPKat

EPO: hearings in "broccoli and tomato cases"

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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German newspapers today report of protests outside the EPO building in Munich yesterday relating to a Broccoli patent? What is going on? News reports state that farmers and Greenpeace activists were among those protesting arguing that patents covering "vegetables should never have been granted and must be stopped" (read reports from Deutsche Welle here and Bloomberg here and the IPKat's earlier post here)

A look at the EPO's website helps to clarify what is at stake. At hearings relating to the so-called "broccoli and tomato cases" (G 2/07, broccoli case and G 1/08 tomato case, more info can be found on the EPO's website here) relating to "essentially biological processes", the EPO's Enlarged Board in Munich is currently looking at the question of

".... whether marker-assisted selection is a biological breeding process or is a technical method and therefore patentable. Its decision on the interpretation of the relevant passage in the EPC and the definition of criteria to be applied in the patent grant procedure is likely to be published by the end of the year, but the judgment is unlikely to be announced immediately after the hearing. The patentability of plants and animals will not be discussed."

The following questions have been referred to the EPO's Enlarged Board and a decision is likely to be taken towards the end of this year.

"1. Does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants fall under the exclusion of Article 53(b) EPC only if these steps reflect and correspond to phenomena which could occur in nature without human intervention?
2. If question 1 is answered in the negative, does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants escape the exclusion of Article 53(b) EPC merely because it contains, as part of any of the steps of crossing and selection, an additional feature of a technical nature?
If question 2 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53(b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level?"

More information on the EPO's website can be found here (helpfully in English). German consumers are traditionally very skeptical when it comes to anything that sounds like it might be genetically manipulated or otherwise "unnatural". Some further background relating to the Broccoli patent controversy can be found on the website of German Die Welt (in German).

This Kat wonders whether our readers feel as strongly about this as German politicians appear to?

Full post as published by IPKat on July 21, 2010 (boomark / email).