Plants and animals derived from conventional breeding are not patentable in Europe. This is the conclusion of the Enlarged Board of Appeal, the highest judicial authority at the European Patent Office (EPO), which had repeatedly come under strong criticism for granting such patents. On May 14, the board issued its long-awaited opinion G3/19, which concludes that plants and animals exclusively obtained by means of an essentially biological process are excluded from patentability under the European Patent Convention. However, this does not apply to patents granted before 1 July 2017 and patent applications which were filed before that date and are still pending. “I strongly welcome the opinion of the Enlarged Board of Appeal. It will bring greater legal certainty for patent applicants, and the general public, on what is a sensitive and complex issue that has legal, societal and economic implications,” said António Campinos, President of the European Patent Office. He announced that the EPO will act in accordance with the clarifications provided in the Enlarged Board’s opinion and implement them in its examination practice in close consultation with stakeholders.

„No Patents on Seeds!“, a coalition of non-governmental organisations, rejoiced at the news. “For more than ten years we have been fighting against patents such as those on broccoli, tomatoes, peppers, melons and cereals. Therefore, we welcome this verdict in the name of the European public, gardeners, farmers and consumers,” said Martha Mertens from “Friends of the Earth Germany”. She stressed that plants and animals are not invented by industry. “Knowledge of methods of breeding plants and animals continues to evolve as a common good from the activities of farmers and breeders over centuries.” For this reason, conventionally bred plants and animals have to be kept available for further breeding, Mertens added. Katherine Dolan commented for the seed saving organisation ARCHE NOAH: “We hope the new verdict will help to put an end to a decade of complete legal absurdity and chaotic decision-making at the EPO. However, there is still a huge risk that big corporations, such as Bayer (previously Monsanto) will try to abuse patent law to take control of our daily food,” Dolan said. “The problem is not yet solved. Further political decisions still have to be taken to close the existing loopholes.”

The loopholes „No Patents on Seeds!“ is worried about refer to the distinction between patentable technical inventions and the random processes used in conventional breeding. Unless there are adequate definitions, ‘technical toppings’ such as those describing random mutations, can still be used to claim plants and animals as ‘inventions’. There are several examples which demonstrate how companies circumvent current prohibitions, such as European patents on barley and beer, melons or lettuce. In 2019, Carlsberg, one of the world’s largest breweries, filed further patent applications covering barley plants derived from conventional breeding, their usage in brewing as well as the resulting beer, research by ‘No Patents on Seeds!’ had shown. As with similar patents granted by the EPO, these patent applications for barley do not involve any technical inventions or the use of methods of genetic engineering which would justify patenting them. “Instead, well known processes were used to trigger random mutations: seeds from barley plants were brought into contact with chemicals to speed up the mutation rate and enhance genetic diversity. Afterwards, further crossing and selection was carried out to breed plants with desirable characteristics,” said „No Patents on Seeds!“. The NGO coalition therefore calls for further political decisions to close these existing loopholes. (ab)