一覧に戻る Broccoli / Tomato

The European Patent Convention (EPC) excludes from patentability essentially biological processes for the production of plants or animals provided that this provision does not apply to microbiological processes or the products thereof. A process for the production of plants or animals is essentially biological if it consists essentially of natural phenomena such as crossing or selection.

On December 10, 2010, the Enlarged Board of Appeal of the European Patent Office published decisions G1/08 and G2/07. In these decisions, the Enlarged Board of Appeal commented on the degree of human intervention needed in the breeding process of a plant in order for the breeding process to be a patentable invention under the EPC. Decision G 1/08 (“Broccoli”) referred to a patent application claiming a process for crossing and selecting broccoli hybrids. After crossing two broccoli varieties, hybrids containing a particularly high level of a molecular marker are selected for further breeding. The applicant argued that a method involving the isolation of a molecular marker should not be regarded as consisting essentially of natural phenomena. Decision G 2/07 (“Tomato”) referred to a patent application claiming a process for crossing and selecting tomato hybrids. The tomato hybrids derived from the crossing of two tomato varieties are selected in such a way that hybrids producing tomatoes with reduced water content are selected for further breeding. The applicant argued that the selection of tomatoes with less water content is not favourable for the continued existence of the hybrid in nature. Accordingly, the claimed process should not be regarded as consisting essentially of natural phenomena.

In both cases, the Enlarged Board of Appeal decided that the human intervention was not sufficient to overcome the exclusion from patentability for conventional plant breeding methods. According to the Enlarged Board of Appeal, the definition of a selection marker in a method for the breeding of plants consisting of crossing and selecting does not render such a breeding method patentable. Nevertheless, a method for breeding plants which comprises a technical step other than crossing and selecting, for example a step involving genetic engineering, could be considered to be a patentable invention under the EPC.

Download the full text of the decision G 2/07 “Broccoli” under:

http://mueller-bore.net/tl_files/Decisions_EPO/G2_07.pdf

Download the full text of the decision G 1/08 “Tomato” under:

http://mueller-bore.net/tl_files/Decisions_EPO/G1_08.pdf

Should you have any questions, please feel free to contact lenhard@mueller-bore.de

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