Melon case gives food for thought to patent practitioners


Marianne Holme

The European Patent Office (EPO) has received about 800 European patent applications relating to plants in general since 2002. About 90 percent concern genetically modified plants.

EPO statistics dated February 14, 2012 show that 3340 applications never entered the examination phase before the EPO, because the applications were abandoned early by the applicant, for example, on receipt of the search report. Then 245 applications were rejected by EPO and 2235 were withdrawn during substantive examination; 1556 are still pending.

Patenting of genetically modified plants is governed by the EU’s 1998 directive on the legal protection of biotechnological inventions, which states that inventions concerning plants and animals are, in principle, patentable. However, the directive does not provide clear guidelines to distinguish between classical breeding, crossing and selection, and modern methods of breeding by biotechnological means.

Article 53 of the European Patent Convention (EPC) defines clear exceptions to patentability, including the exception that patents on “plant or animal varieties or essentially biological processes for the production of plants or animals” shall not be granted. EPC case law has acknowledged various ways of circumventing this exception, at least to some extent, and since 1990, 1602 European patents have been granted for genetically modified plants by drafting creative patent claims.

EPO, GM plants, patents