KWS believes the EPO’s patent decision weakens the breeder’s exemption

Einbeck, December 12, 2018 - The Technical Board of Appeal of the European Patent Office (EPO) has decided that new rules on the patentability of plants, which had only been adopted by the EPO’s Administrative Council in June 2017, conflict with Article 53 (b) of the European Patent Convention and are therefore void. For the time being, the decision relates only to the specific case of the patenting of a special pepper plant. However, it can be assumed that it will also have an effect on similar cases. The upshot is that plants that have been produced according to essentially biological processes (i.e. by conventional breeding) can now be patented again. The written decision containing the board’s full reasoning will be issued in a few weeks’ time.

KWS takes a critical view of this decision. “Patenting of such plants will make access to biological material for breeding more difficult,” said Léon Broers, the member of KWS’ Executive Board responsible for research, in Einbeck. “Yet breeders depend on having as much biodiversity as possible to breed new varieties with improved traits such as drought tolerance, resistance to pests, or higher yield.”

Breeder’s exemption weakened
It is KWS’ conviction that the EPO’s decision weakens the breeder’s exemption. The latter permits any breeder to use protected varieties of its competitors, even without their consent, to breed new varieties and market the resultant new varieties. The breeder’s exemption is one of the reasons why such strong breeding progress has been made in Germany. It helps ensure that farmers obtain new, high-performance varieties every year.

KWS fears legal uncertainty for a long time to come
That was also why it was the clear desire of the European Member States and the EU Commission to exclude conventionally bred plants from patentability. The EPO’s Administrative Council then included regulations to this effect (Rule 28 (2)) in the EPO’s guidelines. However, they are in conflict with an earlier decision by the EPO’s Enlarged Board of Appeal, known as the Tomato/Broccoli II decision. With regard to this conflict, KWS now fears there will again be years of legal uncertainty, since it is not clear how things will go from here in this matter.

“It’s bad for all parties”
“It’s now up to the EPO’s Administrative Council or the Contracting States of the European Patent Convention to clarify this legal conflict. The interplay between the Articles and Rules must be formulated in an unambiguous way,” urged Broers. “That’s complicated and may take years. In the meantime, it’s not certain which plants can be patented and which can’t. That affects the holders and users of patents alike. It’s bad for all parties.”

In order to breed new varieties with better traits, breeders need starting material that has as much genetic diversity as possible. In years or even decades of work, crossing it and selection can create crops that offer higher yield, better resistance to pests or tolerance to aridity. Less biodiversity restricts that work.