Flora and fauna aren't inventions

Summary: "No Patents on Seeds" continues to challenge the utterly bizarre notion that plants, animals and even seeds or embryos are human inventions; thinly-veiled propaganda sites of law firms that profit from such lunacy try to discredit "No Patents on Seeds"

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".

"EPO lettuce patent hit by opposition from pressure group," IPPro Magazine wrote some days ago (we mentioned it on Wednesday). "Pressure group No Patents on Seeds has filed an opposition against a European patent on lettuce claiming it is derived from convention breeding," they said in the opening sentence, repeating the term “pressure group” to describe "No Patents on Seeds" as if it's some notorious lobbyist that bullies or bribes officials. Why the negative connotation? Doesn’t the pressure come from thugs of Monsanto/Bayer and their lawyers who claim they own life and intimidate if not bankrupt small farmers around the world?

Life Sciences Intellectual Property Review, a propaganda (or "pressure") site for patents on life, has also just commented on it, dubbing "No Patents on Seeds" an "Activist group" in the headline (first two words) and same in the article. "Activist" is a label once explained by Jacob Appelbaum (Wikileaks) as derogatory; media like The Guardian, he argued, uses the word "activist" to insinuate one lacks legitimacy of a journalist, scientist, historian etc. From the article in question:

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.

Earlier this week an article by Michael Dow (Madderns Patent & Trade Mark Attorneys) was published under the headline "Are plants patentable in Europe?"

The fact that questions like these are even being asked is significant as it highlights a low level of quality assurance at the EPO. To quote:

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.

So the European Commission does not seem to matter to the EPO, whose terrified-by-the-office judges were willing to reopen the floodgates to these dubious patents.

As we said several times last year, such patents do not contribute to innovation and they only serve to discredit the Office and provoke the public (which occasionally protests in front of the Office). ⬆