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Expert warns of uncertainty for researchers following European Parliament calls for curtailing of animal and plant breeding patents

Out-Law News | 31 May 2012 | 10:16 am | 2 min. read

Products should not be patentable if they stem from conventional breeding of, or conventional breeding methods for, animals and plants, the European Parliament has said.

The Parliament adopted a 'resolution' on the patenting of essential biological processes in which it backed calls for the patentability of products derived from conventional breeding and their methods to be prohibited. The resolution is not binding on the European Patent Office.

The resolution said that the European Patent Office should "exclude from patenting products derived from conventional breeding and all conventional breeding methods, including SMART breeding (precision breeding) and breeding material used for conventional breeding."

The Parliament called on the European Commission to report on "the potential implications of the patenting of breeding methods for plants and their impact on the breeding industry, agriculture, the food industry and food security." It also called on the Commission and individual EU member states to "ensure that the EU will continue to apply a comprehensive breeders‘ exemption in its patent law for plant and animal breeding."

Currently, under the terms of the EU's Biotech Directive "plant and animal varieties" are not patentable and neither, generally, are "essentially biological processes for the production of plants or animals". However if inventions concern a "microbiological or other technical process or a product obtained by means of such a[n] [essentially biological] process [for the production of plants or animals]" then those processes are patentable.

The Directive does contain rules that state that farmers who buy patented "plant propagating material" or "breeding stock or other animal reproductive material" do not infringe on those patent rights under certain circumstances. The farmers can legitimately use the material to grow their own crops on their own farms or the stock or animal reproductive material "for an agricultural purpose" which includes "making the animal or other animal reproductive material available for the purposes of pursuing his agricultural activity but not sale within the framework or for the purpose of a commercial reproduction activity."

Patent law and life sciences expert Louise Fullwood of Pinsent Masons, the law firm behind Out-Law.com, said that the European Parliament's resolution would not be welcomed by research companies.

"The resolution will be welcomed by green and animal rights campaigners but signals a potential warning for European researchers by recommending a narrower approach to subject matter deemed patentable," she said. "The resolution itself is not binding on the European Patent Office (EPO)."

"It is now open to the EPO to follow the resolution, but if it chooses not to then it could only be compelled to do so by a change in current European patent legislation. This introduces some uncertainty into the future position on patentability and may impact upon research strategies if the ability to patent the future results of costly research programmes is placed in doubt," Fullwood said.

Campaign group No Patents on Seeds! said that the European Parliament's decision to adopt the resolution was to be welcomed and that it followed "demands" by national Parliaments, including the Bundestag in Germany, "to put a stop to patents on plant and animal breeding."

"This is a huge success for all farmers, breeders and consumers who are concerned about the monopolisation of our food resources,” Ruth Tippe from No Patents On Seeds! said. "This vote cannot be ignored by the European Patent Office – it is time to stop the sell-out of resources needed for our daily lives."

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