KWS welcomes decision of the highest instance of the European Patent Office on the non-patentability of native traits

On May 14, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) gave a legal opinion requested by the president of the EPO and finally concluded that plants exclusively obtained by essentially biological processes are not patentable. The question of patentability of these so-called native traits had remained unresolved in Europe for more than ten years.

With that, the EBA reversed its previous “Tomato/Brokkoli II” decisions and confirmed the application of the new Rule 28 (2) of the European Patent Convention exempting such native traits from patentability. Furthermore, the EBA stated that its new interpretation does not apply to claims granted or pending before 1 July 2017, the date of entrance into force of Rule 28 (2).

KWS clearly welcomes the decision by the Enlarged Board of Appeal of the European Patent Office. After a decade of legal uncertainty, it now creates clarity and is fully in line with KWS' long-standing IP position, which advocates a regulation to this effect that ensures further breeding progress and diversity. In order to breed new varieties with better characteristics, breeders need the greatest possible diversity of genetic resources. At the same time, patents should not be used to create monopolies; but rather to encourage sustainable innovation for the benefit of society. Fair access to IP must be guaranteed: Therefore, KWS is strongly supporting an industry-wide licensing platform approach for those traits which have been developed or produced by technical means and will remain patentable because of their man-made inventiveness.

Background to the debate

Certain characteristics of plants (traits) can be patented in many territories worldwide – especially if they have been developed or produced by technical means. In contrast to that, native traits are characteristics that occur naturally in plants and are incorporated into new varieties using essentially biological processes such as crossing and selection (conventional breeding). The question of patentability of native traits had been unresolved in Europe for more than a decade until the present decision by the Enlarged Board of Appeal of the European Patent Office.

More information on the EPO decision can be found here.