No patenting of animal breeds and plant varieties

Cattle on a pasture, Source: K.-U. Häßler - Fotolia.com

The current patent legislation transposes the EU Biotechnology Patents Directive into national law and excludes only patents of plant varieties and animal breeds. However, the question arises how to deal with processes which are not just applicable to one variety or breed and which may therefore legally result in patentable cultivated plants or livestock.

The European Patent Office (EPO) is increasingly granting patents on breeding methods. The legal effect of these patents also covers animals and plants, and their offspring, which have been bred using this method. Examples of such patenting "through the backdoor" include: the milk-yield patent and the broccoli patent.

The milk yield patent

The milk-yield patent concerns the identification and isolation of a gene in dairy cattle which is associated with a higher milk yield. This gene allows cattle suitable for breeding high producing cows to be identified and influenced.

Since this patent does not apply to one specific cattle breed but to the entire cattle species, the current ban on patents on animal species does not take effect in this case. Instead, the so-called “derived substance protection” is applied to this process patent. This means that the patent also covers animals treated or produced with this process and their offspring. There are serious doubts whether such a broad scope of application is permissible for biopatents at all. This applies even more to processed products.

The broccoli patent

The European Patent Office in Munich is due to take a decision in the so-called broccoli case on 20 and 21 July 2010. There are two issues:

1. First of all, the EPO’s Enlarged Board of Appeal has to clarify from what point a process can be patented in the first place. Patents are granted only for technical innovations. Biological processes such as cross-breeding and selection can not be patented. The comments made by the EPO suggest that even minor technical steps are considered to be sufficient.
2. The second issues relates to a patent’s scope. What areas may the "derived substance protection" of a process patent cover?

The EPO’s decision on the broccoli patent should draw a clear dividing line between conventional cross-breeding and selection processes ("essentially biological processes") and a patentable technical procedure. In other words: how much technology is required to grant a patent? Does a marker gene suffice?

The following legal basis apply at regional level: the pan-European European Patent Convention (EPC) and the EU Biotechnology Patents Directive. This basis allows for patents to have considerable scope.

Biopatents with an unrestricted scope reduce supply (monopolisation) at the relevant agricultural markets. Experience has shown that this comes at the expense of smallholders or smaller breeding enterprises. The large holdings prevailing on the market usually concentrate on a few profitable breeds or varieties. This, in turn, reduces the diversity of breeds and varieties.

The BMELV has asked its Advisory Board on Biodiversity and Genetic Resources to conduct an analysis of the foreseeable and the expected impacts of biopatents on agriculture and breeding and to derive possible recommendations for action. This expert opinion will be handed over to the BMELV on the occasion of a press conference in Berlin on 7 July 2010.

Symposium on biopatents in Brussels on 28 September 2010

At this symposium, the BMELV and the German Farmers' Union wanted to promote their position on biopatents, to sensitise decision makers and to discuss possible options.