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Patents on seeds

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Overview: Landmarks and developments in the fight against patents on plants and animals

Patenting life? What may sound absurd is actually reality. The food industry at large, and seed corporations in particular, patent not only inventions related to biotechnology, but also to conventional plants for a bigger share of profits.

According to the European Patent Convention (EPC), patents on plants should predominantly not be granted in Europe. Article 53b of the EPC indeed determines that European patents may not be granted for “plant or animal varieties or essentially biological processes for the production of plants or animals”. New interpretations of the EPC have nevertheless allowed the grant of such patents. In March 2015 the Enlarged Board of Appeal of the EPO came to the conflicting decision that processes of conventional breeding may not be patented but that plants (and animals) originating from such breeding efforts may nevertheless be patented. This practice and literal reading of the law has to be stopped! Otherwise, in no time international corporations will monopolize our nutrition.

 
 

Plants are not inventions! ARCHE NOAH is against patents on plants and animals!

The European Patent Office (EPO) is granting more and more patents on genetically unmodified plants emerging from conventional breeding. The patents affect the entire food production chain. ARCHE NOAH is part of a resistance movement which is actively fighting against this patents policy. While the civil society loudly shows its resentment, in December 2015 the European Parliament in Strasbourg has accepted a resolution against patents on seeds. Now it is up to the European Commission to stop patents on plants of conventional breeding on an EU level.

In the last months, the European civil society around “No patents on seeds” * and EU member states such as the Netherlands have put a lot of pressure on the European Commission. The presentation of 820.000 signatures against patents on plants and animals to the President of the board of directors of the European Patent Organisation was a big step in this fight. (Read more about the petition.)

 

In May 2016 the EU commission stated that until the end of the year, they would work on a “clarification” of the legal basis of the controversial patent granting procedure for conventional plants and animals. The largest integrated seed corporations are the only profiteers of such patents while the medium-sized seed industry, the farmers and the civil society clearly express their discontent.

At the moment, patents can be challenged only individually, such as the Monsanto melon patent EP1962578 (applied for in 2011 and revoked in January 2016). ARCHE NOAH has been involved in the opposition of another controversial EPO patent related to the flavonol content of Tomato (link subpage Tomato patent).

However, in the long term, we need a sound and strong solution in European legislation that unequivocally outlaws patents on plants and animals without leaving any loopholes (See our Position paper on intellectual property rights : download link File from Fulya: 20160127 AN Position Paper IPR). Recently, some positive changes have been made to the Austrian patent legislation. However, these very welcomed amendments need to be supported at European level to truly be meaningful. ARCHE NOAH will continue to fight for such a change!

STOP PATENTS ON SEEDS!!!

* ARCHE NOAH is a member of the coalition „No patents on seeds!“, campaigning for a clear regulation in patent law. Their initiative is supported globally by over 300 NGOs and farmers’ organisations.

 
 
(c) Arche Noah Schiltern
 

The tomato opposition

65.000 signatures against the tomato patent EP1515600 - the largest group opposition ever filed in Europe! Read more

(c) D. Steinböck
 

Petition

Petition against patents on plants and animals: 820.000 signatures are a clear statement from civil society! Read more

 
(c) Arche Noah Schiltern

FAQs on patents

In the following section you can find answers to FAQs about patents on plants and seeds.

What are patents on plants?

 
 

A patent is a commercial property right, thus it creates an artificial monopoly on intellectual products and processes. Those are considered as patentable if they fulfil the following criteria: novelty, inventiveness and industrial applicability. When a patent is granted, the holders of the patent own the right to exclude others from the reproduction, utilisation, sale and distribution of the invention for 20 years. Yet they may grant others the utilisation of the invention with their consent, usually against payment of license fees. Patents have increasingly been used in plant innovation. Growers who wish to use patented seeds for the development of new varieties cannot do this without asking – there is no “breeder’s privilege” in patent law. With certain restrictions, farmers in Austria are allowed to reproduce and use crops in their own agricultural holdings.

 
 
 

What is a European patent?

 
 

The European Patent (EP) is a bundle of national patents. It is granted by the European Patent Office (EPO) on the legal basis of the European Patent Convention (EPC). The EPC is a multilateral agreement between 38 States: all EU member states as well as Norway, Iceland, Switzerland, Liechtenstein, San Marino, Turkey, Macedonia, Albania and Serbia are amongst them. The core of the EPC is the establishment of a unified and central patent granting procedure. When applying for a patent at the EPO, the applicant has to name the signatories where the protection is asked for. The indication “European Patent” might be misleading here, as no unified European patent is generated by the granting of a patent by the EPO, but only a bundle of national patents. This means that their impact and enforcement in patent infringement proceedings is still subject to national statutory provisions and jurisdictions.

 
 
 

What is the legal basis for patents on plants?

 
 

According to the European Patent Convention (EPC), patents on plants are predominantly illegal in Europe. Article 53b of the EPC determines that European patents may not be granted for “plant or animal varieties or essentially biological processes for the production of plants or animals”. New interpretations of the EPC have nevertheless allowed for such patents. In 1999, following to the adoption of the so-called Biotech Directive 98/44/EC, the European Patent Office (EPO) has included a rule in the regulations of the EPC which legalises patents if they are not technically restricted to one variety but can be applied to a multitude of varieties. (In this regard, the Austrian Patent Act follows the text of the EPC.)

Moreover, in March 2015 the Enlarged Board of Appeal of the EPO came to the conflicting decision that procedures of conventional breeding may not be patented but that plants (and animals) originating from such breeding efforts may be patented nevertheless.

 
 
 

What is the impact on biodiversity?

 
 

The impediment of innovations in plant breeding as well as the proceeding monopolization on the seed market both put a lot of pressure on crop diversity. The consequence would be the gradual depletion of supplies (“more of the same”). If a small number of seed corporations decide which patented variations are grown (monopolization), the freedom of choice of breeders, farmers, food producers and consumers will be drastically limited. Therefore, the decline of crop- and biodiversity not only endangers the sustainability of eco- and agro-systems but presents a serious threat to global food security and regional food sovereignty.

 
 
 

What are the consequences for growers and farmers?

 
 

The diversity of cultivated and wild plants presents an essential basis for the work of breeders and thus for the development of new varieties. Provided that patents are wrongfully granted on discoveries, they massively restrict the breeders’ access to crop diversity as they may not be able to use the patented seeds for free but at most after conclusion of a contract and against payment of licence fees. This presents an obstacle for innovations in breeding as well as for competition. Furthermore, patents support the concentration of the seed market on a few companies, as in general only big corporations have the financial means to file for patents and implement the rights stemming from such titles. Small and medium-sized seed companies are thus excluded from competition and may finally be forced out of the market. Furthermore, there is no information on patents on seeds packages, and if one tries to make its own research, they are too complicated to read and understand. There is therefore not enough transparency on the exclusive rights that may be contained in seeds. This leads to huge legal insecurity and in the worst case even high costs due to unwanted patent infringement.

 

The situation is similarly problematic for farmers, as unwanted patent infringement can bring about a big financial burden. There is not enough transparency on the exclusive rights that may cover a plant variety (patent or variety protection). Furthermore, the danger of genetic contamination of conventional plants by plants with patented characteristics, caused by natural pollination, is significant. In this case, in Austria as well as in most European countries patent claims cannot be asserted according to patent law, but in some countries there is lack of regulatory clarity.

 
 
 

Can old varieties be patented?

 
 

Patents are not granted directly for varieties but for certain characteristics of a plant. Now, if certain characteristics of an old variety which are interesting for a company are patented in accordance with the requirements for the granting procedure, all old varieties which feature the patented characteristics will fall into the scope of the relevant patent. Summarised, this means that without exception any variety can be affected by patents.

 
 
 

How many plants have been patented in Europe?

 
 

According to the European Patent Office (EPO), 1.960 European patents on transgenic plants have been granted, while 6.750 have been applied for since the foundation of the EPO up until November 2015. The number of European patents granted on plants of conventional breeding is 72 at the moment, while the number of patent applications in this category is as high as 724. Those numbers reflect the status in accordance to the classification practice and counting method of EPO. But leading NGOs like No Patents on Seeds consider that up to 1000 controversial patent applications linked to conventional breeding are pending.

 
 
 

How can we stop patents on seeds?

 
 

To stop patents on plants and animals of conventional breeding, all procedures, breeding material and products used or produced by conventional breeders need to be classified as not patentable. At the moment, the provisions of the European Patent Convention make it possible to circumvent the ban on plant varieties of conventional breeding: a specific characteristic of a plant can be chosen and the claims can be formulated in such a way that all plants and all methods which produce the characteristic in question are included within the artificial monopoly. A strict legal interpretation of the law might prevent this. A “whole content approach” would contribute to it: when it comes to the question of granting a patent, this approach focuses on the effective content and context of the patent specification, not the strict fulfilment of patentability criteria and the clever formulation of the claims.

The EU directive 98/44/EC „Legal protection of biotechnological inventions“ was adopted in 1998 by the European Parliament as well as the EU member states and was incorporated by the board of directors of the European Patent Organisation (EPOrg) into the Implementing Regulations of the European Patent Convention (EPC) in 1999. In a Resolution of 2012, the European Parliament has stated that the prohibition of patents needs to be applied more strictly than it is done at the moment by the European Patent Office (EPO). It states that it should concern all procedures of conventional breeding but also all products and breeding material generated thereof. Starting point to achieve this wider prohibition could be a change in the Implementing Regulations (= interpretation) of the EPC as well as a change of the EU biotech directive and national European patent laws (through explicit and broader exclusion of patents on plants and animals).

 
 
 
 
 

 
Vandana Shiva

an emotional message against patents!