IP protection for plant-related inventions

IP protection for plant-related inventions

The legal sources determining the framework for IP protection in Europe for plant-related inventions consist of the European Patent Convention and the EU Directive 98/44 on the legal protection of biotechnological inventions. According to these laws, plant varieties as such, as well as essentially biological processes for the production of plants, are expressly excluded from patent protection. The meaning of the exclusion relating to essentially biological processes has been clarified by the Enlarged Board of Appeal of the European Patent Office in its landmark decision in cases G2/07 and G1/08 (Broccoli and Tomato). The further question whether products resulting from such essentially biological processes should still remain patentable is currently pending before the Enlarged Board of Appeal (cases G2/12 and G2/13).

The exclusion of plant varieties per se seems clear. Nevertheless, as a result of the specific nature of plant-related patents, plant varieties may still fall under the scope of certain patents as the current patent system in Europe allows patent protection on inventions which may encompass several plant varieties. This may be the case, for instance, of a patent on a specific trait that occurs in several plant varieties. Using such plant varieties for further breeding and development is generally not allowed under patent laws. However, with the view of avoiding that access to such plant varieties for further breeding is blocked, such acts have been exempted under a couple of national patent laws and most recently also in the Unified Patent Court Agreement. The introduction of such a limited breeders’ exemption in national patent laws is one of the key elements of ESA’s IP position, together with the request to limit the patentability of biological material to material not obtained through an essentially biological process and with the initiative to provide transparency on the patent status of plant varieties commercialized in Europe. This latter objective has been realized via the PINTO database.  

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