Biotech companies will want to obtain
Europe-wide protection via the EPO, but
then avoid litigation in the Netherlands,
Germany and France. On the other
hand, farmers and plant breeders may
look to exploit the national provisions of
these countries.
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To avoid the exclusion, the technical step would have to
introduce or modify a genomic trait, with the result being
a genotype that goes beyond simple mixing of the chosen
parent plant genomes by conventional, sexual crossing.
The more recent “Tomato II” and “Broccoli II” cases, G2/12
and G2/13, looked more closely at how to treat products
which are themselves novel (new plant parts) but which
are defined (in a patent application) as having been
made by an essentially biological process. Ultimately,
the EBA held that the exclusion does not extend to the
products of essentially biological processes, thereby
allowing companies to develop and protect, via the EPO,
improvements in plant-derived products.
However, farmers and breeders’ associations expressed
concerns over the “Tomato II” and “Broccoli II” cases
as threatening biodiversity and limiting market fluidity,
rendering farmers more reliant on a small number of
international organisations who hold patent rights.
This is a view shared by Dutch and German legislators,
who, in 2010 and 2013 respectively, enacted provisions
in their national laws to prevent products obtained by
means of essentially biological processes from being the
subject of patent protection.
The French authorities are now likely to follow suit, after
indicating their determination to “remove obstacles
to innovation caused by the multiplication of patent
applications on life and the growing concentration of
the patent holders, at the expense of the plant varieties
certificates.” However, an amendment to the proposed
bill was generally supported, which aims to limit the scope
of the exclusion to only animal and plant products.
These differences in the national laws of the Netherlands,
Germany and France compared to the EPO will likely
have important implications on where European patents
covering products obtained by essentially biological
processes are enforced. Biotech companies will want
to obtain Europe-wide protection via the EPO, but then
avoid litigation in the Netherlands, Germany and France.
On the other hand, farmers and plant breeders may look
to exploit the national provisions of these countries.
A factor that will inevitably complicate matters further is
the arrival of the Unitary Patent and the Unified Patent
Court. Biotech companies will no doubt follow with
interest developments at the Central Division of the UPC
that is charged with handling litigation of patents in this
field, and may look favourably on the Unitary Patent
system if the court appears inclined to follow the case law
of the EBA.
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