In a new episode of the longstanding legal saga on biotech inventions, the European Parliament delivered a reprimand to the European Patent Office (EPO) reaffirming that tomatoes, broccoli and other plants obtained by essentially biological processes must not be patentable.

The non-legislative resolution adopted in Strasbourg on Thursday (19 September) is scathing about the EPO, saying their internal decision-making rules “must not undermine democratic political control of European patent law and its interpretation and the legislator’s intent.”

The EPO, which is not an EU body, opened the possibility of granting patent protection to conventionally-bred plants in March 2015, after attempts to register tomatoes with reduced water content by the consumer goods giant Unilever and broccoli growing with a selective increase of the anticarcinogenic glucosinolates by the global agrochemical company Syngenta.

A first European Parliament resolution openly criticised the EPO’s move in December 2015, asking the European Commission to clarify the EU law under the so-called 1998 Biotechnology Directive (98/44/EC).

On 3 November 2016, the Commission stepped in by adopting a notice that excluded from patentability products obtained by ‘essentially biological’ processes, which was backed up by the EU Competitiveness Council in its 20 February 2017 conclusion.

In June 2017, the EPO accordingly adopted the new Implementing Rule 28(2) to the European Patent Convention (EPC) in compliance with the Commission’s legal clarification.

However, on 5 December 2018, EPO’s Board of Appeal considered that this new implementing rule conflicts with the corresponding Article 53(c) of the EPC, thus effectively authorising the granting of patents on plants obtained by ‘essentially biological’ process.

The EPO’s technical board argued that the European Patent Convention takes precedence over EPO implementing rules and now a final decision from the Enlarged Board of Appeal is expected after October, following a referral by the president of the EPO.

Since then, the European Commission and a number of member states have called for the restoration of the previous status quo, namely that no patents be granted for such plants.

An EU official told EURACTIV that the Commission intends to submit ‘amicus curiae’ observations on behalf of the EU, supporting the interpretation of the Biotechnology Directive made in the November 2016 notice.

A political signal

The European Parliament has now jumped on the legal controversy, calling on the Commission to reinstate legal certainty, as it is affecting innovation and competitiveness in the European plant-breeding and farming sectors.

“It is important to deliver a very clear political message on this,” said German Christian-democrat lawmaker Norbert Lins, chair of the Agriculture parliamentary committee which led the initiative of drafting the resolution.

“I’m happy we’re on the same very unanimous position,” said Industry Commissioner Elżbieta Bieńkowska during the plenary debate on Monday, adding that the Commission will try to take a very active role to restore “legal certainty and common sense” on the matter.

The resolution voted by the MEPs very much reflect the view of Euroseeds, the EU seeds industry organisation secretary-general Garlich von Essen told EURACTIV.

“Euroseeds sees this resolution as a confirmation of the views expressed by the Parliament, the Commission, the governments of the 38 member countries of the EPC and plant breeders in the past and as a clear political signal towards the European Patent Office,” he added.

The European Commission can have the last say by amending the 1998 Biotechnology Directive, but at the risk of opening a Pandora’s box on a complex piece of legislation which many say is outdated.

Otherwise, only the intervention by the European Court of Justice could, theoretically, bail out the Commission.