The European Patent Office (EPO) has revoked a controversial patent on conventionally bred broccoli. This is a great success for “No Patents on Seeds!”, a broad coalition of civil society organizations, which had filed an opposition to the patent. In 2013, Seminis, a company owned by Monsanto, which has meanwhile been bought up by Bayer, was granted patent EP1597965 on a broccoli with a longer stalk than other varieties, making it easier to mechanically harvest the crop. The patent covered the plants, the seeds and the harvested “severed broccoli heads” as an invention. It additionally covered a “plurality of broccoli plants grown in a field of broccoli.” In 2014, the coalition against patents on seeds filed an opposition because according to European patent law, unlike genetically engineered crops, plants and animals “obtained from essentially biological processes” are not patentable. However, EPO had a different interpretation. Its Enlarged Board of Appeal ruled in 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 can be patented. Despite fierce public protest, it continued to grant patents on conventionally bred plants.

In 2017, due to the pressure from the EU and civil society, EPO adopted new rules in order to exclude from patentability plants and animals derived from conventional breeding using methods like crossing and selection. In its decision revoking the broccoli patent, EPO’s Opposition Division “arrived at the conclusion that in the present case the claimed broccoli plants can only be obtained by an essentially biological process comprising crossing and selection steps”. It is the first time that the new rules have resulted in the revocation of a patent. “This is an important success for the broad coalition of civil society organizations against patents on plants and animals. Without our activities, the EPO rules would not have been changed and the patent would still be valid,” said Christoph Then for ‘No Patents on Seeds!’. “The giant corporations, such as Bayer, Syngenta and BASF, have failed in their attempt to completely monopolize conventional breeding through using patents,” he added.

However, there are still huge legal loopholes as recently shown in the case of conventionally bred barley. In 2016, the breweries Carlsberg and Heineken were granted three patents on barley plants, their usage in brewing as well as the beer produced by these methods. The patents in question are based on random mutations in the genome of the barley. Kernels were brought into contact with chemicals and in reaction showed an increase in their genetic variability. Then, specific mutations, already known to be useful, were selected by standard procedures. Last month, the EPO rejected oppositions filed by ‘No Patents on Seeds!’ and only restricted the patent instead of revoking it entirely. The coalition, which also includes the Foundation on Future Farming, warned that this could threaten free plant breeding in the future since such patented mutations could be hidden in each plant variety. “European politicians now have to take action and close these loopholes. We have to prevent the vested interests of the patent industry from endangering the future of our daily food,” said Then. (ab)