EUROPEAN PATENTS
Controversial patents covering a fruit and a vegetable are awaiting their fate at the Enlarged Board of Appeal. LSIPR examines the likelihood of their succeeding.
New recipes for Tomatoes and Broccoli
I
n October 2014, a large inflatable tomato greeted officials at the Enlarged Board of Appeal of the European Patent Office (EPO). Surrounding the officials were protestors waving placards that said “free broccoli” and “free tomato”. Te demonstration was organised by No Patents on Seeds, a coalition of non-governmental and
farmers’ organisations concerned about
patents covering seeds, plants and farm animals. In addition, an online petition set up by campaigning group Avaaz to stop the further patenting of fruit and vegetables in Europe has so far generated more than two million signatures.
It is fair to say the patenting of fruit and vegetables has been controversial. Te protest came on the same day as oral arguments made in cases G2/12 (Tomatoes II) and G2/13 (Broccoli II) at the Enlarged Board on October 27. Te Tomatoes II case deals with a patent registered by Israel’s Ministry of Agriculture to protect a method for breeding tomatoes with a reduced water content and the product of that method, while Broccoli II concerns a patent registered by UK biotechnology company Plant Bioscience to protect a method for the selective increase of the anti-carcinogenic glucosinolates in broccoli. Te patent in the Tomatoes II case was opposed by consumer goods company Unilever, while crop business Syngenta challenged the patent in the Broccoli II case. Te latest patents follow earlier bids by the same parties that were rejected by the Enlarged Board. Tese earlier patents were rejected, in 2010, because they covered an “essentially biological process” which, according to
22 Life Sciences Intellectual Property Review
article 53 (b) of the European Patent Convention (EPC), cannot be patented. Tomas Leonard, partner at law firm Kilburn and Strode, says: “If you claim a method that encompasses an essentially biological process for the production of plants or animals then it is not patentable, even if you have steps before or aſter that are of a technical nature. If your claimed method includes the essentially biological step of sexual crossing, then it is not patentable,” he adds. Both patents, however, have returned in a modified form, incorporating ‘product-by- process’ claims. As Leonard explains, process claims cover the steps taken to create the product; product claims are directed to the end result of the process; and product-by-process claims seek to protect the end product as defined by the process through which it is made.
Leonard uses the analogy of a cake—the recipe is the process, the cake is the product, and the cake defined by the recipe is the product-by-process. “In principle, a patent applicant is allowed to define a product in terms of the process by which it is made if it is not possible to define the product in any other way and the product itself meets the requirements of patentability. On the flipside, if you have an inventive/novel process then you cannot necessarily have a product-by-process claim unless the product itself is patentable.” Te decisions by the Enlarged Board in
Tomato and Broccoli, which dealt with the first patents, made clear that the processes listed in the applications are not patentable. However, in the latest cases both parties have raised the question
Volume 2, Issue 2
www.lifesciencesipreview.com
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