THE ABUSE OF EUROPEAN PATENT LAW MUST STOP!
The non-legislative resolution adopted in Strasbourg on Thursday (19 September) is scathing about the EPO, saying their internal decision-making rules “must not undermine democratic political control of European patent law and its interpretation and the legislator’s intent.”
The EPO, which is not an EU body, opened the possibility of granting patent protection to conventionally-bred plants in March 2015, after attempts to register tomatoes with reduced water content by the consumer goods giant Unilever and broccoli growing with a selective increase of the anticarcinogenic glucosinolates by the global agrochemical company Syngenta.
A first European Parliament resolution openly criticised the EPO’s move in December 2015, asking the European Commission to clarify the EU law under the so-called 1998 Biotechnology Directive (98/44/EC). – Euroactiv
On the abuse of European Patent Law
and on a resolution on the issue of the patentability of biological plants and animals, aka plants and animals that could be found in nature or bred by farmers, we get a clear picture of multinational corporations lies and abuse – and this this has to be stopped!
The whole story started back in 2012, when the European Patent Office (EPO) granted patents on a variety of “wrinkled” tomato and on broccoli, which were by no means genetically modified, but could already be found in nature or in the fields as products obtained from essentially biological processes such as crossing and selection. GM plants are normally the only ones patentable in the EU, as clearly stated in Directive 98/44: plants and animals obtained through classical breeding or just present in nature cannot be patented.
But the EPO – which is actually not forced to follow EU rules and gives here its very personal interpretation of them – decided to patent seeds based on specific characteristics, actually found in plants in their natural condition (like the level of a certain component in a plant). This means companies were able to patent perfectly “natural” common plants just by describing a characteristic, granting them the rights to every plant with the same trait. This has made it easy for multinational corporations, and a handful of agro-chemical giants – who together already control between 60 and 90% of the various seed sectors – to award themselves the rights to plants and foodstuffs that were created by natural processes and/or bred and selected by farmers over centuries.
A LONG-WINDED TUG OF WAR
As a response, the European Parliament adopted a resolution calling for clarification of patent law for plants. Judging by the Commission’s answer on 8 November 2016, that EU law never intended to grant patents on natural traits that are introduced into plants by means of essentially biological processes such as crossing and selection. All Member States supported this reading and the Board of Directors of the EPO eventually amended its policy so as not to grant patents on products from essentially biological processes.
Following this answer from the EU political arena, the Administrative Council of the EPO made a further decision and eventually agreed that patents on plants and animals derived from conventional breeding are prohibited. However, the Technical Board of Appeal of the EPO rejected this decision on 18 December 2018 by arguing that the Administrative Council had overstepped its powers and that, therefore, patents on plants may be granted. – Greens/EFA
“The idea that you can patent plants, animals and biological processes is bizarre. They should not be the property of multinationals!” @anjahazekam on the dangerous @EPOorg moves scrutinised in a Parliament resolution, Sept. 19, 2019 – Anja HAZEKAMP GUENGL on twitter
THE EU LEGISLATORS STRIKE BACK
Public parties, including the European Parliament have until 1 October 2019 to comment on this latest episode of the EPO saga. While the Commission will be responsible for sending the official position of the EU on this matter, the political groups in the European Parliament decided to have a debate and a joint resolution in order to reiterate – for the third time – their opposition to any patenting of non-biotech plants and animals.
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EU citizens also have the possibility to take a position on this matter by signing the letter addressed to the EPO –
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deadline for online signature September 25.
Alternatively you can print the letter as a pdf and send it to „Keine Patente auf Saatgut!“ / Frohschammerstraße 14 / 80807 Munich, Germany.
The letters and the signatures will then be handed over to the EPO until 1 October 2019.
17.9.2019
on the patentability of plants and essentially biological processes
pursuant to Rules 136(5) and 132(4) of the Rules of Procedure replacing the following motions:
B9‑0040/2019 (PPE)
B9‑0041/2019 (Verts/ALE)
B9‑0042/2019 (GUE/NGL)
B9‑0043/2019 (ECR)
B9‑0044/2019 (S&D)
B9‑0047/2019 (Renew)
on the patentability of plants and essentially biological processes
Annie Schreijer‑Pierik, Herbert Dorfmann on behalf of the PPE Group
Paolo De Castro on behalf of the S&D Group
Jan Huitema on behalf of the Renew Group
Martin Häusling on behalf of the Verts/ALE Group
Anthea McIntyre, Bert‑Jan Ruissen, Veronika Vrecionová, Nicola Procaccini, Mazaly Aguilar on behalf of the ECR Group
Martin Buschmann, Luke Ming Flanagan, Stelios Kouloglou, Petros Kokkalis, Marisa Matias, Manuel Bompard on behalf of the GUE/NGL Group
Dino Giarrusso, Daniela Rondinelli
Expresses its profound concerns regarding the decision of the Technical Board of Appeal 3.3.04 of the EPO of 5 December 2018 (T 1063/18), which creates a situation of legal uncertainty;
2. Reiterates that plant and animal varieties, including parts and traits, essentially biological processes as well as products emanating from such processes, shall not in any way be patentable, pursuant to Directive 98/44/EC and the EU legislator’s intention;
3. Considers that internal decision-making rules of the EPO must not undermine democratic political control of European patent law and its interpretation and the legislator’s intent as clarified by the Commission Notice of 8 November 2016 on certain articles of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions;
4. Considers that any attempt to patent products derived from conventional breeding, including crossing and selection, or on genetic material necessary for conventional breeding undermines the exclusion established in Article 53(b) of the EPC and in Article 4 of Directive 98/44/EC;
5. Calls on the Commission and the Member States to do everything in their power to obtain legal clarity regarding the prohibition of the patentability of products obtained from essentially biological processes by the EPO;
6. Welcomes the Commission Notice of 8 November 2016 clarifying that the EU legislator’s intention when adopting Directive 98/44/EC was to exclude from patentability products that are obtained through essentially biological processes; welcomes the alignment by contracting states of the EPC of their law and practice, and the decision of the Administrative Council of the EPO to clarify the scope and meaning of Article 53(b) EPC regarding exceptions to patentability;
7. Calls on the Commission and the Member States to protect the innovative capacity of the European plant-breeding and farming sectors and the general public interest and to ensure that the Union will effectively safeguard guaranteed access to, and use of, material obtained from essentially biological processes for plant breeding, in order – where applicable – not to interfere with practices guaranteeing farmers’ rights and the breeders’ exemption;
8. Urges the Commission, therefore, to submit an amicus curiae before 1 October 2019 with the Enlarged Board of Appeal of the EPO, reinforcing the conclusions laid down in its Notice of 2016 that the EU legislator’s intention when adopting Directive 98/44/EC was to exclude from patentability products that are obtained through essentially biological processes, and to attach this resolution to its statement;
9. Calls on the Enlarged Board of Appeal of the EPO to restore, without delay, legal certainty by affirmatively answering the questions that have been referred to it by the President of the EPO in the interest of breeders, farmers and the public;
10. Calls on the Commission to engage actively with third countries when negotiating trade and partnership agreements with a view to ensuring the exclusion of essentially biological processes and the products thereof from patentability;
11. Calls on the Commission to pursue the exclusion from patentability of essentially biological processes and their products in the context of discussions on the harmonisation of multilateral patent law;
12. Calls on the Commission to report on the development and the implications of patent law in the field of biotechnology and genetic engineering, as required under Article 16(c) of Directive 98/44/EC and as requested by Parliament in its resolution of 17 December 2015 on patents and plant breeders’ rights, and to further analyse issues related to the scope of protection of patents;
13. Instructs its President to submit this resolution as a written statement to the Enlarged Board of Appeal of the EPO by 1 October 2019, and to forward this resolution to the Council and the Commission.
TRANSLATION OF TEXT: all european languages including Texts adopted Thursday, 19 September 2019 – Strasbourg Provisional edition
European Task Force 
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