GENTECH archive


Fwd: European Patent Convention

>AUTHOR: Christoph Then, "No Patents on Life!" Germany
>TITLE: (appeal to pressure the European Patent Office to uphold its reading
>of the European Patent Convention regarding the exclusion of plant
>from patentability)
>DATE: February 1999
>TO:             Interested organisations in Europe and all over the world
>FROM:   "No Patents on Life!" Germany
>DATE:   February 1999
>RE:             European Patent Convention
>Dear all,
>The European Patent Office will give a final decision on the patentability
>of plants (and animals) in the next months. The "Enlarged Board of Appeal"
>which is the highest court-like institution of the EPO will rule out the
>Novartis case EP 448511.
>The question they will have to decide is (inter alia):
>"Does a claim which relates to plants but wherein specific plant varieties
>are not individually claimed ipso facto avoid the prohibition on patenting
>in Article 53 (b) EPC though it embraces pant varieties?"
>The decision will have far reaching implications on the question of the
>patentability of plants and animals in Europe. In its former decision
>(T356/93) the "Technical Board of Appeal" (chamber below the "Enlarged
>of Appeal") has stated that plants can not be patented because of Article
>(b). This Article excludes plants or animal varieties from patentability.
>The Technical Board of Appeal held in Plant Cells/PLANT GENETICS SYSTEMS
>(T356/93) that a claim defining genetically modified plants having a
>distinct, stable genetic characteristic was not allowable under Art 53 (b)
>EPC if the claimed modification itself made the modified or transformed
>plant a 'plant variety'. 'Plant variety' was definied as 'plant grouping
>within a single botanical taxon of the lowest rank which, irrespective of
>whether it would be eligible for protection under the UPOV Convention, is
>characterized by at least one single transmissible characteristic
>distinguishing it from other plant groupings and which is sufficiently
>homogeneous and stable in its relevant characteristics'. In G03/95 the
>Enlarged Board of Appeal held that this decision did not conflict with
>previous decisions of the Technical Boards. Owing to the technologies used
>and the aims pursued by modern plant biotechnology, i.e. the production of
>new plant varieties, transgenic plants fall under Art. 53 (b) EPC and are,
>therefore, excluded from patentability.
>The decision T356/93 was upheld by the last ruling of the "Technical Board
>of Appeal" in 1997 (T1054/96). It is now to the "Enlarged Board of Appeal"
>to uphold or to reject the former decisions.
>The upcoming decision has to be seen before the background of the new
>directive "Legal Protection of Biotechnological Inventions" which was
>accepted by EU Parliament in May 1998. This Directive also deals with the
>questions of patenting plants and plant varieties. The EPO has to decide
>to go on with these regulations in the very near future. Additionally, the
>situation gets more complicated because of a legal challenge of the
>Netherlands at the European Court of Justice which also refers (inter alia)
>to the issue of plants. And finally the WTO is to decide on the exclusion
>plants and animals from patent law (TRIPs Art 27.3) in the next years.
>In this situation it is very important that the EPO knows that there are
>many organizations and persons all over the world and especially in Europe
>which are against patents on plants and animals. We need the awareness of
>the public to stop the EPO from changing its decision from 1995.
>Please use the attached letter (or a similar one) to tell the EPO about
>position. Please send a copy of your letter to our office. Thank you very
>-- Christoph Then
>for "No Patents on Life!"
>"No Patents on Life!", Germany
>Frohschammerstr. 14
>80807 München
>Tel: (49-89) 35 65 18 42
>Fax: (49-89) 359 66 22
>European Patent Office
>Enlarged Board of Appeal
>concerning  T1054/96 and T 356/93
>80298 München
>Fax: (49-89) 23 99 45 60
>Dear Madam, dear Sir,
>It is with great concern that I follow the current debates concerning the
>possible patentability of plants (and partially animals) at the European
>Patent Office (EPO).
>Even though the European Patent Convention (EPC) states very clearly in
>Art.53b that "plant or animal varieties", and "essentially biological
>processes for the production of plants or animals" may not be patented, the
>biotech industry still tries to circumvent this provision. In its 1995
>landmark decision (T356/93) the EPO has ruled that the wording of the
>Convention clearly excludes the patenting of plants. Due to this ruling,
>patents on animals and plants are currently not granted at the EPO.
>However, previous to this ruling, patents were granted where more than one
>variety of plant (or animal variety) was involved. One example is a patent
>granted to Monsanto (EP546090), which does not only include one plant
>variety (the "Round-Up Ready" soybeans) but rather all plant species,
>varieties, seeds and parts of plants which are resistant to Monsanto's
>"Round-Up" herbicide (glyphosate). Quoted are the following species: "Corn,
>wheat, rice, soybean, cotton, sugar beet, oilseed rape, canola, flax,
>sunflower, potato, tobacco, alfalfa, poplar, pine, apple and grape."
>The Board of Appeal of the EPO in its comments (T1054/96) in 1997 has found
>a fitting comparison: granting such patents would amount to concluding from
>a law prohibiting bigamy that polygamy is permitted. The enlarged Board of
>Appeal is now asked to come to a fundamental ruling. We would like to urge
>you to confirm and stick to the current practice of the EPO not to allow
>claims which relate to or embrace plant varieties. In the light of the EPC
>as it stands any decision departing from the essentials of T356/93 would
>clearly violate the Convention. In its Art. 23 (3) the EPC clearly states
>that members of boards are only bound by the EPC. Other pieces of
>legislation may therefore not be used against the current interpretation of
>Article 53 (b) EPC. This applies, in particular to the European Directive
>09/44/EC which might contravene the Community Patent Convention which forms
>part of the 1989 Luxembourg Agreement and against which the Netherlands
>recently filed a suit before the European Court of Justice. It is my
>conviction that the Enlarged Board of Appeal cannot rule -- contra legem --
>against the wording of the legal basis, the EPC, and re-grant patents on
>plants (and animals).
>Aside from the juridical matters above, these patents would lead to
>far-reaching patent claims over living nature, would monopolise the seed
>markets and create ethically unacceptable claims over natural creation.
>Therefore I call on the members of the Enlarged Board of Appeal to
>the pressures from the biotech-industry and to create clear rules, based on
>and fully incorporating the wording of Art 53b EPC.
>Yours faithfully,