BRUSSELS, Belgium: It was never the European legislator’s intention to grant patents on products of essential biological processes. This is the tenor of an interpretation of the Biotechnology Guideline of 1998 presented by the European Commission on 3 November of this year.
The EU view on things marks an important step in a discussion on patents in plant breeding that has been ongoing for many years and it is now up to the European Patent Office to safeguard the development of new plant varieties for both growers and consumers.
The fact that the European Commission has interpreted the European Biotechnology Directive in such a way is an important step in the discussion. In their interpretation, the European Commission indicates how the legislator (the European Council and the European Parliament) intended the Directive in 1998. It was clearly not the legislator’s intention for plants that were developed through traditional breeding (i.e. the crossing and selecting of plants), to be patentable.
That the European Commission has pronounced itself so clearly on this subject is something quite special. This was achieved also by the driving force of the European Parliament. Now follow-up steps are needed to achieve the ultimate goal: balancing breeders’ rights and patent rights to allow for the continued growth of innovation in plant breeding.
Although the interpretation is a great result, the follow-up is now in the hands of the governments of the member states of the European Patent Office (EPO).
There are two important things that they must do.
First, this interpretation has to be adopted by the EPO. This independent institution responsible for the granting of European patents is not legally bound by the interpretation of the European Commission. Its policies are determined by its members: the national governments of the EU 28 Member States plus 10 other countries. They have to ensure that the EPO adopts this interpretation.
Second, a further clarification is required as to the scope of patents that can be granted to prevent already existing plants from still falling under the effect of such a patent.
In its interpretation, the European Commission also gave the initial impetus to improve the
application of so-called compulsory licenses in case a grower is not granted access to the patented plant material of another grower. The interpretation is not conclusive in this respect as it is the opinion of the European Commission that further analysis is required.
Plantum and the Association of Dutch Flower Auctions (VBN) and a growing group of chain parties will, therefore, urge the European Parliament, the European Council and the European Commission to present a more detailed report on this guideline in order to achieve further improvements.
There has been an issue surrounding patents in plant breeding since 1998 and it’s grown bigger over the years. The increased granting of patents on plants limits the plant breeding sectors’ open innovation system, which is formed by the plant breeders’ rights. The protection provided by breeders’ rights is essential for innovation. The original idea was to only grant patents for plants that were genetically modified. However, patent protection was also sought, more and more, for naturally occurring characteristics. Patent rights do not lead to an open innovation system, as a patent holder can block any further development by refusing the competition the use of patented plant material. It was the breeders themselves, united in Plantum, and chain partners such as VBN that sounded the alarm, as they anticipated that innovation would stagnate and the diversity of supply would decrease.
The discussion on patents on plants began almost 10 years ago. From that moment on, Plantum and VBN have urged the European Commission and other European bodies to restore the balance between breeders’ rights and patent rights.