EPO Indicates Plants Obtained Through Conventional Breeding Methods May Be Patentable Subject Matter

In two decisions released March 25, 2015 (G 2/12, otherwise known as Tomatoes II; and G 2/13 otherwise known as Broccoli II), the Enlarged Board of Appeal of the European Patent Office (EBA) declared that plants or plant material (such as a part of a plant or fruit) obtained through conventional breeding methods are patentable subject matter.

Tomatoes II and Broccoli II arose in relation to European Patent Application Nos. EP1211926 (for a “method for breeding tomatoes having reduced water content and product of the method”) and EP1069819 (for a “method for selective increase of the anticarcinogenic glucosinolates in brassica species”).

Under Article 53(b) of the European Patent Convention, an essentially biological process for the production of plants is not patentable. However, in Tomatoes II and Broccoli II, the EBA ruled that the Article 53(b) exclusion “does not have a negative effect on the allowability of a product claim directed to plants or plant material.” The EBA also noted “plant products such as fruits, seeds and parts of plants are patentable in principle under the European Patent Convention (EPC) even if they are obtained through essentially biological breeding methods involving crossing and selection.”

As a result of these decisions, the fact that a biological process is required to produce a new plant does not prevent the European Patent Office from granting a patent covering that plant, so long as all other patentability requirements are met.

For commentary, see:

The World Intellectual Property Review

Global Agriculture Organization