HAVING just commented on software patents being granted by and promoted by the European Patent Office (EPO), let's examine where they stand on another outrageous kind (or family) of patents. Soon after 'Teffgate' the subject is resurfacing again, thanks to "No Patents on Seeds".
Activist group No Patents on Seeds has filed an opposition against a patent on lettuce, owned by Dutch food supplier Rijk Zwaan Zaadteelt.
Announced yesterday, March 6, the activist group has opposed EP 2,966,992 B1, a patent covering lettuce seeds, plants and the harvest of lettuces that grow in a hotter climate.
According to No Patents to Seeds, the trait is supposed to be helpful in adaption to ongoing climate change and the seeds are derived from conventional breedings without any involvement of genetic engineering.
The rules keep changing over whether plants or plant products obtained by means of an essentially biological process are patentable in Europe.
Under Article 53(b) EPC (and Article 4 Biotech Directive), European patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants. Originally, this was interpreted to extend to plants and plant products obtained by means of an essentially biological process.
This was challenged in Broccoli/Tomatoes I ( G 0002/07 & G 0001/08) and Broccoli/Tomatoes II ( G 0002/12 & G 0002/13), following which, it was allowable to have a product claim directed to plants or plant material such as a fruit, even though the plant or plant material might be obtained by an essentially biological process, which is not patentable.
The European Commission considered the issue ( 2016/C 411/03) and took the view that the EU legislator’s intention when adopting the Biotech Directive was to exclude from patentability products (plants and plant parts) that are obtained by means of essentially biological processes.
The Administrative Council of the EPO then introduced Rule 28(2) to modify Article 53(b) EPC. Rule 28(2) states that European patents shall not be granted in respect of plants exclusively obtained by means of an essentially biological process.