Kock, Michael A. --- "Patenting non-transgenic plants in the EU" [2017] ELECD 809; in Matthews, Duncan; Zech, Herbert (eds), "Research Handbook on Intellectual Property and the Life Sciences" (Edward Elgar Publishing, 2017) 132

Book Title: Research Handbook on Intellectual Property and the Life Sciences

Editor(s): Matthews, Duncan; Zech, Herbert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479443

Section: Chapter 8

Section Title: Patenting non-transgenic plants in the EU

Author(s): Kock, Michael A.

Number of pages: 28

Abstract/Description:

While the patenting of genetically modified plants in the EU follows the established rules for DNA sequence-related innovations, the patenting of breeding technologies and the resulting plants is a new and controversially debated field. Two decisions of the Enlarged Board of Appeal of the European Patent Office (EBA) are setting precedence: the Broccoli and Tomato I Cases G 2/07 and G 1/08on the patentability of breeding processes under the exception for essentially biological processes, and the Broccoli and Tomato II Cases G 2/12 and G 2/13on the patentability of plants resulting from an essentially biological process. While these two decisions and a few subsequent decisions of the Technical Boards of Appeal (TBA) provide some initial guidance, many questions remain open. This chapter discusses the status of patenting of non-transgenic plants in the EU with emphasis on plants with so-called ‘native traits’ and questions relating to the scope and enforceability of such patents. Breeders have the general goal of creating new genetic diversity in a target plant to obtain an improved phenotype. Every plant obtained by breeding is genetically modified by man and almost every plant variety used today – with the exception of a few wild berries and mushrooms – has to be considered as ‘man-made’.