Despite the large political objection, patents are still granted on plant varieties obtained by an essentially biological process in Europe. A recent study of 2016 (“No patents on seeds”) [3] shows that in 2016, numerous patent claims of this type were registered at the EPO. This report illustrates how the industry is intentionally bypassing the restrictions and taking advantage of the loopholes in Patent Law in order to have patents granted on plant and animal varieties obtained by those methods.
In Europe the “essentially biological” processes, that is, conventional methods of selection and (since July 2017), plant and animal products obtained by these same processes cannot in principle be registered. However, the EPO (European Patent Office) granted almost 200 patents of this kind during the past few years.

The search for loopholes by the industry

According to the EPO, what is meant by “essentially biological processes” is the selection and seed-propagated crossbreeding [4] .
Originally, patent claims from the industry were referring mostly to these “conventional” breeding. As the report states, the industry is constantly developing new strategies in order to overcome the existing legal prohibitions. For instance, some late patent applications are only dealing with selection of genetic desired characteristics, without even mentioning crossbreeding. Another approach consists
of describing very similar processes to crossbreeding and selection with a complex terminology so as to give technical character to the patent.
If we look into deeper, we can realise that these patent applications relate more to legal “magic tricks” than technical processes, since crossbreeding and natural selection represent the keystone for the conventional conception of plant varieties.
Nonetheless, the EPO is currently granting numerous patents of this kind. And furthermore, it is offering advice to companies as to how they can formulate their claims in their patent applications.
For example, in 2016 Carlsberg and Heineken companies [5] obtained various patents on beer based on genetic uncertain mutations ! These patents were granted on the ground that these mutations were not based on crossbreeding and natural selection in their “strict meaning”. Yet, neither malt barley, nor the brewing method or beer itself was a product of their invention that should be patented.

A struggle with unequal weapons

Such patents are jeopardizing free access to seeds but also to the reproduction materials.
Furthermore, it increases the oligopolistic situation of a few Multinational corporations (MNC). Unlike big companies, most of small businesses do not have the sufficient amount of required expertise or financial means to apply for a patent. In this way, in 2016 most of patent applications for “conventional methods of creation” received by the WIPO were filed by Dupont, Monsanto, Dow, Bayer and Syngenta.

Finally, concerning plant and animal varieties per se, In 1998 and 1999, decisions were taken in order to overcome the current legal obstacles about their taxonomy and to please the industry. This ruling made a significant change in the interpretation of the EPC : Indeed, the EBA (Enlarged Board of Appeal) decided in 1998 that patents which were not claiming to precise plant or animal varieties, but to more general claim of plants and animals, could be granted.

This graph submitted by Dr Siobhan Yeats, Director of Biotechnology at the European Patent Office in a conference in 2011 depicts the effects that this new understanding has. For instance, it illustrates that even though a patent cannot be granted on a variety of apples which contains a high amount of vitamins, a claim can be granted for all plants with this feature (high amount in vitamins), such as apples and tomatoes. Finally, this means that a patent can be granted on plants with a higher content of vitamins that will encompass all plant varieties that are of particular interest. Consequently, the restriction of patents on plant and animal varieties is no longer of major relevance in European Patent Office decision-making. And as the diagram shows, the EPO gave essentially the industry an alternative to avoid the regulations.