New patent granted to Bayer breaks the law

The European Patent Office (EPO) in Munich has recently granted a patent for the German company Bayer for breeding plants with a higher stress tolerance (EP1616013). The comprehensive patent will give Bayer monopoly control over important food crops including both genetic engineering in plants and the process for conventional breeding and plants derived thereof.

Patents on processes for conventional breeding, based on crossing and selection, are in conflict with Article 53b of the European Patent Convention. This was confirmed by the EPO in a precedent decision at the end of 2010. However, in claim 14 of the Bayer patent nothing else is patented than conventional plant breeding based on natural genetic conditions.

"This new patent for Bayer breaks the law. It conflicts in particular with the prohibition of patents on essentially biological' processes for breeding. This case shows once more that European Patent Law needs to be revised in order to effectively prohibit patents on the breeding of plants and animals. Further, the EPO must be subjected to independent control. If these kind of patents are not stopped, resources for daily living will be sold out to companies such as Bayer and Monsanto, warns Christoph Then, a representative of the international coalition “no patents on seeds”.

Further, the other patent claims granted to Bayer are in a legal grey area. The European Patent Law excludes patents on “plant varieties” but this patent also covers the marketing of seeds perceived as plant varieties. Furthermore, patents on mutational breeding are used since a long time and lack inventiveness. Granting these kind patents that lack any kind of “invention” have been criticized as inflationary and even as an abuse of patent law by many observers.

This patent is a wake-up call for political decision makers to respond to the protests from farmers, breeders, consumers, environmental and development organizations against patents on plants and animals. The international coalition “no patents on seeds” and many other organizations are now preparing for a day of protest at the European Patent Office in Munich: On 26 October 2011, there will be a final public hearing at the EPO and a decision is due to be taken in a precedent case, a patent on broccoli. The protest is aiming to send out a strong signal to politicians in Europe, to no longer leave decision-making to the European Patent Office, but to implement effective regulations against patents on plants and animals.