Who filed the patents and when?
The EPO's Enlarged Board is considering two patent applications related to plants. The first is G2/07 - the so-called broccoli case. UK-based Plant Bioscience applied to patent a method "for selective increase of the anticarcinogenic glucosinolates in brassica species" in 1999 - an application that was opposed in 2004 by Syngenta and Groupe Limagrain Holding.
The second case - the tomato case - is G1/08. Israel's Ministry of Agriculture filed a patent for a "method for breeding tomatoes having reduced water content and product of the method" in 2000, which was opposed by Unilever in 2004.
What happened next?
Both the patents were maintained in limited form following appeals. TheTechnical Board of Appeal referred questions from both appeals to the Enlarged Board of Appeal, which held consolidated hearings in the cases in July. It is due to rule before the end of the year.
So what makes the cases so controversial?
Europeans are far more squeamish about attempts to inject science - sometimes literally - into their food than many Americans and Asians, it seems. The patent applications themselves have been opposed by commercial rivals on technical grounds, but the wider issues that they raise have attracted the attention of environmental campaigners and farmers. The EPO's July hearings saw more than 150 protesters demonstrate outside the Munich offices with placards calling for an end to patents on food.
Is that what the cases are really about?
The Enlarged Board is considering three technical questions about patentability.
1.Does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants fall under the exclusion of Article 53(b) EPC only if these steps reflect and correspond to phenomena which could occur in nature without human intervention?
2.If question 1 is answered in the negative, does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants escape the exclusion of Article 53(b) EPC merely because it contains, as part of any of the steps of crossing and selection, an additional feature of a technical nature?
3.If question 2 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53(b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level? Essentially, the Enlarged Board of Appeal's ruling should clarify when a process for producing plants or animals is a technical, patentable one and when it is an "essentially biological" process which means that it cannot be patented.
Aren't some of these issues here dealt with by plant breeding rules?
Yes. UPOV, the Geneva-based International Union for the Protection of New Varieties of Plants (secretary-general: Francis Gurry) provides for a sui generis form of IP protection for plant breeders and some commentators argue that it, rather that patent offices, should have the final say over rights relating to plants.
Where the line should be drawn between rules on patenting and on plant breeding is one of the issues that the Enlarged Board will have to consider.
What's the political backdrop to the debates?
Food- and agriculture-related patents are a hot topic in Germany in particular. The Green Party is an important political force in the country, as is the Christian Social Union of Bavaria (CSU), a conservative party with plenty of support from farmers, which forms part of the federal coalition government.
The CSU's Ilse Aigner is the country's agriculture minister and she has been vocal in her criticism of so-called biopatents. In September she visited the EPO in Munich and told president Benoît Battistelli that "there are plenty of good reasons - technical, ethical and legal - against biopatents on farm animals and plants".
The German government is committed to opposing patents on livestock and cultivated plants and Aigner told the EPO that Germany would work towards amending the EU's biopatents directive.
Its concerns are not just "technical, ethical and legal", however. Aigner also passed on a report to the EPO prepared by her ministry's Advisory Board on Biodiversity and Genetic Resource in which scientists warn about the economic pressure on smaller farms and breeders through biopatents.
What's the EPO's position?
In late September, the German agriculture ministry and the German Farmers' Union organised a symposium on biopatents in Brussels. Siobhán Yeats, director of biotechnology at the EPO, provided a statement in which she said that fears about the possible effect of biotech patents for inventions in the agricultural area appeared "exaggerated".
Rather pointedly, she said that Germany had voted in favour of the EU biotech directive, which she said "affirms that plants and animals are patentable in principle". As an EPO member state Germany also participated in the Administrative Council vote to incorporate the directive in the EPC. Since then Germany has also implemented the directive in German law.
"In order for no patents to be granted for certain types of plants or animals any more, the law would have to be changed at European level," said Yeats. "Such an action could only be initiated by EU/EPO member states, not by the EPO itself. The EPO is not authorised to assess a patent's social, economic or ecological implications. That is a task for the legislator and for the competent European and national regulatory authorities. Post-grant patent issues, such as the scope conferred by patent claims and infringement suits, are dealt with by national courts, not by the EPO."
Is there an upswing in the number of applications for patents related to plants?
Not at the EPO, says Yeats. In her statement, she said that the number of patent applications in the plant area has fallen sharply in the past 10 years, from about 1,100 in 1999 to just under 600 in 2009. She added that patents are granted for less than 30% of all biotech applications, and fewer than 1% are granted as filed.