KWS sees the Breeding Reservation weakened by a patent decision of the EPO

 
The Technical Board of Appeal of the European Patent Office (EPO) has ruled that a new regulation on the patentability of plants adopted by the Administrative Council of the EPO in June 2017 is contrary to Article 53 (b) of the European Patent Convention and therefore does not apply. The decision initially refers only to the specific case of patenting a special pepper plant. However, it can be assumed that it also has an effect on similar cases. As a result, this means that plants that were produced by means of essentially biological processes (that is, by conventional breeding) are now patentable again. The written justification of the specific decision will only be available in a few weeks.

KWS sees this decision critically. "The patenting of such plants makes access to biological material more difficult for breeding," said KWS board member responsible for research, Léon Broers, in Einbeck. "However, breeders are dependent on the greatest possible biodiversity for breeding new varieties with improved characteristics such as drought tolerance, resistance to pests or higher yields."

Breeding reservation weakened

The decision of the Patent Office weakens, according to conviction of KWS, the Breeding Reservation. This allows each breeder to use the protected varieties of its competitors even without their consent for the breeding of new varieties and to market the resulting new varieties. The strong German breeding progress is among other result of the breeding reservation. It helps farmers receive new, efficient varieties each year.

KWS fears long legal uncertainty

For this reason too, it was the clear will of the European Member States and the European Commission to exclude conventionally bred plants from patentability. The Administrative Council of the EPO thereupon included a corresponding provision (Rule 28 (2)) in the EPO's Administrative Guidelines. However, this is in contradiction to a previous decision of the Enlarged Board of Appeal of the EPO, the so-called tomato / broccoli II decision. With regard to this contradiction, KWS now fears a renewed year-long legal uncertainty, because it is unclear how this question will continue.

"That's bad for all sides"

"It is now for the Administrative Council of the Patent Office or the member states of the European Patent Convention to clarify this legal contradiction. The interplay of the articles and rules must be clearly formulated, "Broers said. "This is complicated and can take years. In the meantime, it is uncertain which plants are patentable and which are not. This affects both the owners and users of patents. That's bad for all sides. "

In order to breed new varieties with better characteristics, breeders need as much diversity as possible in the genetic source material. Over the years or decades of work, crossbreeding and selection can create higher yield crops, better pest resistance or tolerance to drought. Less biodiversity restricts this work.

Editor's note: This article was originally published in German. This English summary has been prepared with Google Translate and edited for clarity.

Original article: KWS sieht den Züchtungsvorbehalt durch Patententscheidung des EPA geschwächt