Genomics-inspired methods for plant breeding are not patentable says EPO

The European Patent Office has ruled that using genomics to pinpoint desirable genes and traits and then applying them to traditional plant breeding is not patentable.

This is the outcome of the so-called “broccoli” and “tomato” cases, in which EPO has now given a definitive judgment, saying the correct interpretation of the expression “essentially biological processes for the production of plants (or animals)” used in the European Patent Convention (EPC) excludes such processes from patentability.

In its decision EPO concludes that a process for the production of plants involving sexually crossing whole plant genomes, and the subsequent selection of plants, is not patentable. The mere inclusion of a technical step that serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants, or of subsequently selecting plants with particular genetics does not override this exclusion from patentability.

While technical devices such as genetic markers may themselves be patentable inventions, their use does not make an essentially biological process patentable.

However, EPO also ruled that inserting or modifying a trait in the genome by using genetic engineering does not rely on sexual crossing of whole genomes and may therefore be patentable.

In its 70 page decision, the EPO gives a comprehensive overview of the historical development of the relevant legislation and case law referring to the question of the patentability of essentially biological processes in Europe.

The decision aims to clarify the legal meaning of the concept of “essentially biological processes” under the European Patent Convention.