A nature.com blog post: “Controversial plant biotech patents overturned” talked about the important news about the EPO recently overturning two controversial patents for broccoli and tomato varieties, varieties that were produced using conventional breeding techniques. Genetic markers were used to breed the desired traits. Nature say:
“According to EU law, biological processes for the production of plants or animals are not allowed to be patented. But the law regards marker-assisted selection as a technical process, and therefore patentable. The broccoli and tomato patents were awarded on this basis…
…After years of appeals and hearings, the cases reached the EPO’s Enlarged Board of Appeal, its highest level of jurisdiction. In a ruling on 9 December, the board agreed with industry that the patents covered the whole selection and breeding process and therefore should not be allowed…
..This decision does not affect the patentability of inventions or technical steps such as genetic markers”
The news was also reported on the EPO site “No European patents for essentially biological breeding processes”
“The EPO’s Enlarged Board of Appeal has now rendered its decisions in the so-called “broccoli” (G 2/07) and “tomato” (G 1/08) cases, bearing on the correct interpretation of the term “essentially biological processes for the production of plants (or animals)” used in the European Patent Convention (EPC) to exclude such processes from patentability.
The Enlarged Board of Appeal is the highest instance in the EPO’s judiciary and, as all other Boards of Appeal of the EPO, acts in full independence of the Office in carrying out its duties. Its task is to ensure a uniform application of the patent law under the EPC.”
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