07.04.2017 |

European Patent Office continues to grant patents on plants

No patents on conventionally bred plants (Photo: Andreas Hermsdorf/

The European Patent Office (EPO) continues to grant patents on conventionally bred plants despite strong opposition from the EU and civil society organisations. According to new research by No Patents on Seeds!, an initiative supported by over 300 NGOs and farmers’ organisations worldwide, the EPO green-lighted 40 patents on plants derived from conventional breeding in 2016. This brings the total number of such patents granted by the EPO to 200. Last year, another 60 patents were granted on processes for the genetic engineering of plants. Most patent holders are big players such as Bayer and Monsanto. Taking into account some of their affiliates, BASF and Monsanto top the list with 30 new patents granted by the EPO in 2016, followed by Bayer with 20 patents. DuPont and Dow AgroSciences received a total of 14 patents and Syngenta got eight. According to the initiative, the overall number of European patents on plants now stands at about 3000. The organisations criticize that the EPO does not care about increased pressure from the EU and civil society but is “working behind the scenes” instead “to create new loopholes to allow the continued patenting of conventionally bred plants and animals”.

According to European patent law, unlike genetically engineered crops, plants and animals “obtained from essentially biological processes” are not patentable. However, EPO has a different stance. Its Enlarged Board of Appeal ruled in March 2015 on the precedent cases of broccoli and tomato, that even though essentially biological processes for the production of plants are not patentable, the resulting plant or fruit can be patented. In December 2015, the EU Parliament rejected this in a resolution approved with a huge majority. A notice adopted by the European Commission in November 2016 confirmed that plants and animals derived from conventional breeding are not patentable. In February, also the EU Competitiveness Council backed these positions and reiterates that EU legislator’s intention when adopting the relevant directive on the legal protection of biotech inventions was to exclude from patentability products derived from conventional breeding. The Council called on Member States to ensure that the EPO respects these conclusions. The EPO, did indeed stop granting several patents in conventional breeding. However, it seems to keep open loopholes for companies and patent lawyers who adapt their patent applications accordingly. “It is shocking to see just how easy it is for companies and patent lobbyists to escape political decision-making. All they need to do is to slightly change the focus of their patent claims in order to continue claiming seeds, plants and harvest as their invention,” said Christoph Then for No Patents on Seeds!. “This allows companies, such as Bayer and Monsanto, to take increasing control of agriculture and food production.”

According to the initiative, one trick frequently used by companies is to simply claim plant characteristics, such as genetic conditions or changes in the phenotype of plants. The scope of these patents covers all plants with these same characteristics, no matter which process was used in breeding. In addition, in many cases random mutations are claimed as inventions although the EU had clearly stated that only methods for genetic engineering can be considered inventions. In 2016, up to 65% of patents granted on conventionally bred plants were based on random mutations. One example of how these loopholes are being exploited are patents on beer held by Carlsberg and Heineken. Starting with random mutations, all barley plants with a specific quality in brewing, the brewing process and the beer produced thereof are claimed as inventions. Similar patents on random mutations were granted to Bayer (oilseed rape), Monsanto (plants for oil production) and DuPont (maize). No Patents on Seeds! calls on the member states of the EPO to take decisive action at their next meeting in June to stop patents on conventional plant and animal breeding. (ab)

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