A plant breeding method that is typical of traditional agriculture is no longer an obstacle to patent protection for plants.

Such are the holdings of the Enlarged Board of Appeal of the European Patent Office in decisions G0002/12 (Broccoli II) and G002/13 (Tomato II), both issued on 25 March 2015.

Essentially biological processes for the production of plants and animals are excluded from patentability under Article 53(b) of the European Patent Convention.

In two earlier decisions (G0001/08 and G0002/07) the Board had clarified the meaning of “essentially biological process for the production of plants and animals”, offering an extremely wide definition of them which left several important questions unanswered.

The main question was whether a plant which – as such – meets patentability requirements can be the object of a patent even if it is obtained through an essentially biological process, which is itself excluded from patent protection. In practice, the question was what would happen if a traditional cross and selective process typical of classical agriculture were to produce a new plant with technical features endowing it with novelty and inventiveness.

In last week’s decisions, the Board answered that question as follows.

1 The exclusion of essentially biological processes for the production of plants and animals under Article 53(b) EPC does not have a negative effect on the allowability of a product claim concerning plant or material deriving therefrom, such as plant parts.

2 a The fact that the process features of a product-by-process claim, directed to plants or plant material other than a plant variety, define an essentially biological process for the production of plant does not render the claim unallowable.

2 b The fact that the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application does not render a claim directed to plants or plant material other than a plant variety unallowable.
3 Therefore it is of no relevance that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Article 53(b) EPC.

The two decisions will have a very strong impact and will most likely cause a red-hot debate between opposing interests represented by the associations of growers and breeders on one side and big agriculture and food industry on the other.
So far, traditional agricultural methods had been considered a monopoly of traditional agriculture and were seen, along with “plant varieties”, as a separate productive world, unrelated to patent protection for “technical” inventions. The two above decisions seem bound to cause a blurring of the boundary between these two realms, opening the door to dangerous overlapping.

Just as importantly, although the two decisions concern achievements of plant breeding, they establish absolute principles, applicable also to animal breeding.

Decisions G0002/12 and G002/13 and their possible consequences deserve further careful, in-depth consideration.