EUROPEAN PATENTS
of whether the product of a non-patentable process is patentable. Te Technical Board of Appeal referred Tomatoes II and Broccoli
II to the Enlarged
Board because it was worried that if the modified patents were granted, the “circumvention of the exclusion” of patentability, listed in article 53 (b), could be simply down to “a matter of skilful draſting, thereby diminishing the consistency and persuasiveness of the legislative framework of the EPC with regard to patentable subject matter”. Liz Cohen, partner at law firm Bristows, feels that Plant Bioscience has raised the issue of how a patent is draſted. She says: “One of the questions referred to the Enlarged Board in Broccoli II asks whether it would be possible to waive the protection of a process conferred by a product claim by disclaiming the excluded process. “Te proprietor of the broccoli patent application filed an auxiliary request attempting to disclaim the ‘essentially biological process’ with the following wording: ‘wherein the claim does not encompass an essentially biological process for producing the plant’,” she adds.
Her conclusion is that Plant Bioscience has
not done enough to assuage the concerns of the Technical Board and that the application will ultimately be rejected. “Given the guidance on disclaimers provided by the referring Technical Board, it may prove difficult to formulate a claim as to exclude ‘essentially biological processes’. On this basis, it seems unlikely that the Enlarged Board will consider the product claims to be patentable,” she says.
24 Life Sciences Intellectual Property Review
It is not, however, just the language of the
patents in Tomatoes II and Broccoli II that might give Enlarged Board officials headaches, but also the language of the EPC rules themselves and the efforts made to interpret them. Article 53(b) of the EPC is seemingly clear on what is not patent-eligible, as it states: “European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.”
However, this has been challenged by continued developments in genetic engineering. Developments concerning genetically modified seeds mean that the simple rule of what constitutes an “essentially biological process” is much more difficult to work out. Ultimately, says Leonard, the refusal of the applications in the original Tomato and Broccoli referrals made it clear that the methods themselves are not patentable, but it is not apparent whether that exclusion should be further expanded to cover products made by those processes.
“If you say it is being excluded then you are arguably making the exclusion broader than it is intended to be, because the exclusion is about methods, not products. We have seen reluctance from the Enlarged Boards to expand exclusions beyond their originally intended scope, such as in the methods of diagnosis referral in G1/04 (diagnostic methods),” Leonard says. “However, we have seen in other fields, notably in the area of human embryonic stem cells, that products made by excluded processes are not considered patentable.
Volume 2, Issue 2
“In the situation of G2/12 (Tomatoes II) and
G2/13 (Broccoli II), if the Enlarged Board takes a similar approach, the outcome will not be a welcome one for the patentees,” he adds.
More control
On the other hand, groups such as No Patents on Seeds would like to see this level of exclusion extended. In a report published in November, called European patents on plants and animals— is the patent industry taking control of our food?, the group states that around 2,400 patents covering plants have been granted, and 1,400 concerning animals, since 1980. Te group says this represents an “abuse of patent laws”. Such applications show no sign of slowing down, according to the group, which estimates that around 7,500 applications for plants and 5,000 applications for animals are pending at the EPO.
In the report the group writes that “it appears
the EPO have in fact intentionally created an unprecedented situation full of legal absurdities. If all plants with specific characteristics and all processes for breeding are claimed, there is a high likelihood that the patent will be granted”. Te authors of the report again refer to the language of the claims in Tomatoes II and Broccoli II and raise similar concerns to those of the Technical Board, pointing to the way patent applications covering plants and animals are written. No Patents on Seeds also draws attention to the effects such patents are having on competition. “Tese patents granted by the EPO promote
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