Statement by BIO Deutschland on the “Broccoli Patent”: Clarification Provides Planning Certainty

In the middle of December, BIO Deutschland issued a statement on the decision by the Enlarged Board of Appeals of the European Patent Organisation (EPO) on the pending hearings on broccoli and tomatoes (G2/07 and G1/08). The association stated that the clarification provides biotechnology companies with planning certainty when registering patents and facilitates targeted investment decisions. In its decision, the Enlarged Board of Appeals, as the highest EPO authority, clarified the interpretation of the term “in essentially biological processes”.

In the verdict, the board clarified that the mere use of technical procedural steps (for example the use of genetic markers) in carrying out classical breeding processes does not make the patentability of either the entire process or its results possible. However, should a process to change plants using the insertion of features into a genome or to alter the genome by genetic engineering methods be implemented, patent allocation will remain possible. Rainer Wessel, a member of the board of BIO Deutschland and chairman of the association’s Working Group on Licences and Technical Contracts, said, “With this differentiation, the Enlarged Board of Appeals has clarified the interpretation of the legal term ‘in essentially biological processes’, which was introduced in the bio-patent regulation and used in an undefined way in the European Patent Convention (EPC) and German patent legislation.”

Due to the necessary (EPO-required) description of the complex biological issues and the many independent aspects that must be protected, biotechnological inventions are inevitably longer than other technical inventions. EPO procedures are creating increasing demands for biotechnological registrations, which affect the length of the description and the examples. Certainty and the ability to plan in terms of patents are therefore important to researching small and medium-sized enterprises. The decision by the Enlarged Board of Appeals now creates clear regulations.

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