Important political decision on prohibitions in European patent law expected this week

26 June 2017

On Wednesday this week, the 38 contracting states of the European Patent Office will meet in La Hague to make a decision on the future interpretation of existing prohibitions in European patent law in regard to the breeding of plants and animals. The EU Parliament and the EU Commission are demanding that such patents are confined to genetic engineering. According to a proposal presented by the EPO, some of these patents will indeed no longer be granted in future. However, at the same time, new loopholes are being created that will allow the avoidance of the relevant prohibitions. Consequently, it is more than likely that there will be an overall increase in the number of patents granted on conventional breeding.

European patent law already prohibits patents on “essentially biological processes” i.e. breeding processes that do not use genetic engineering for the breeding of plants and animals. Nevertheless, the EPO has in the past granted several patents on plants bred through crossing and selection or other random processes, such as mutations. According to current proposal of the EPO, in future patents will only be refused if they claim plants or animals directly produced by crossing and selection. However, the prohibitions will become immediately ineffective and invalid for these plants or animals if a specific genetic condition is claimed.