Coming To Plates In Europe: Patented Vegetables, Produced By Conventional Breeding

from the whose-side-are-they-on? dept

Mon, Nov 28th 2011 7:32am — Glyn Moody

The European Patent Organization (EPO) is a strange entity. Despite its name, it has nothing to do with the European Union. Instead, it was set up on the basis of the 1973 European Patent Convention to grant patents under that Convention.

As an independent body whose only reason for existing is to oversee the issue of patents, it has a natural tendency to widen their reach. One of the most hotly-contested areas where that is happening is software patents, which are not granted in Europe "as such" (you can imagine what fun the lawyers have with those two words).

For its latest expansionist moves, the EPO seems to have cast a lustful eye over the world of vegetables. Here's the background to the so-called "broccoli" case from the EPO itself:

British company Plant Biosciences was granted a European patent (EP1069819) for a method for the production of plants whereby the level of a potentially anticarcinogenic substance in broccoli plants can be increased.

French company Limagrain and Swiss group Syngenta filed notices of opposition to the patent in 2003 and maintained their challenge in subsequent appeals. They allege, among other things, that the patent protects an essentially biological method of breeding plants excluded from patentability under the European Patent Convention (EPC) binding on the EPO. The technical board of appeal hearing the two appeals stayed the proceedings and referred questions to the Enlarged Board of Appeal (EBA) with a view to obtaining clarification of the term "essentially biological processes for the production of plants (or animals)" and the associated exception to patentability.

The issue here is that the original patent was issued for plants produced by ordinary, "biological" methods, and those are excluded from patentability. Where things get strange is when Plant Biosciences withdrew part of its claim:

the patentee has proposed to limit its original patent by excluding the breeding methods.

You might think that would be the end of the patent, but no such luck. Here's what the EPO writes in the sentence following the one above (and note our old friend "as such"):

Thus, only the broccoli plants as such remain protected.

This is truly crazy. The "patentee" has withdrawn any claim to a patent on the breeding method -- because, as the two companies objecting pointed out, such biological methods are excluded from patentability. And yet Plant Biosciences still seems to be claiming the result of those unpatentable biological methods, which is essentially what every farmer has obtained since the dawn of agriculture through cross-breeding.

Sadly, it seems likely that the revised claim will be accepted, because the appeal against the patent has been cancelled:

The two firms appealing the patent made their request for a public hearing conditional on whether the board decides not to follow the proposal of the patentee. Therefore, the board will now issue its reasoned decision in writing.

Untangling the logic there, what this means is that the two companies objecting to the patent asked for a public hearing only if the EPO did not accept Plant Biosciences' proposal to limit the patent to the result, not the process. The EPO has accepted that proposal, and so no public hearing will be held, and it therefore seems likely that the modified patent will be accepted. In this way, the EPO will have set a precedent for allowing patents on the result of ordinary biological breeding � and succeeded in extending its patent empire just a little further.

In fact, in addition to this "broccoli" patent, there is already a "tomato" patent, and according to this article on the affair, there are plenty more in the pipeline:

Ruth Tippe from the No Patents on Life! Initiative said that further patents with claims on bread, flour and noodles (EP1331845) and cucumber (EP1433378) are also due to be granted. "The EPO is about to grant further patents very soon," she said. "For example, on 2 November a patent will be granted to Bayer claiming cucumber derived from conventional breeding."

Indeed, given the extremely low bar for patentability that the EPO is setting here, it seems almost inevitable that there will be a mad rush to patent vast swathes of the vegetable kingdom before anyone else does.

What's worrying about this is not just the fact that all kinds of key foodstuffs produced by conventional breeding may end up patented, but the complete lack of any sensible logic from the EPO in allowing them. It emphasizes once again the unaccountability of an independent organization whose chief priority is granting patents, rather than seeking to serve the public interest -- as one subject to democratic checks might be.

Taken together with the EPO's continual weakening of the ban on software's patentability, this latest episode suggests that it is time to bring the EPO to heel, and to make it accountable to the European people whose name it bears.

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Filed Under: conventional breeding, europe, patents, vegetables
Companies: epo

30 Comments

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A Guy (profile), 28 Nov 2011 @ 7:39am

That may be the most ridiculous thing I've ever read. It almost makes the US look sane (almost).

The only possible saving grace is, I think the only thing it protects cloning of the plant. If you cross breed their broccoli with another genetically different plant, you are no longer producing the patented plant.
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out_of_the_blue, 28 Nov 2011 @ 7:49am

"time to bring the EPO to heel,"
"and to make it accountable to the European people whose name it bears."

First, is there a "European people" that I've somehow missed? -- In a period when the euro (currency) is said to be on the verge of collapse? Just when the whole notion is about to fall apart, you've adopted the false premise that Europe is somehow united...

2nd, HOW exactly do you propose to get THIS bunch of un-elected bureaucrats under control? This is an urgent need, as the method can surely be applied to all other bureaucracies everywhere! If it's not a secret that you keep for proprietary benefit, then let us know now!
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Prisoner 201, 28 Nov 2011 @ 7:56am

Stuff like this is just the most glaring examples that patents and other IP laws needs to drastically reduced.

Or we end up with the world of The Windup Girl.
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Richard (profile), 28 Nov 2011 @ 7:57am

Re: "time to bring the EPO to heel,"
2nd, HOW exactly do you propose to get THIS bunch of un-elected bureaucrats under control? This is an urgent need, as the method can surely be applied to all other bureaucracies everywhere! If it's not a secret that you keep for proprietary benefit, then let us know now!

If we come up with a solution here then we will of course patent it. The rest of the world will then be able to use it - for a fee!
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Anonymous Coward, 28 Nov 2011 @ 8:02am

Fuck this shit
I give up. I used to believe in IP, I really did. But the more I read stories like this, and talk to douchebag IP lawyers and retarded Hollywood fanbois on sites like this, the more glad I am Imaginary Property won't survive in the future. Fuck of IP leeches. Your time of freeloading on the backs of creators and citizens, and sucking the life from culture and humanity is ending soon.
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MrWilson, 28 Nov 2011 @ 8:18am

But if you don't give farmer's/agro-businesses patents, they won't be incentivized and will stop growing food and then we'll all starve!
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Butcherer79 (profile), 28 Nov 2011 @ 8:20am

Re: "time to bring the EPO to heel,"
"First, is there a "European people" that I've somehow missed? -- In a period when the euro (currency) is said to be on the verge of collapse? Just when the whole notion is about to fall apart, you've adopted the false premise that Europe is somehow united..."

Yes there is, I don't know how you missed them, but Europe and the European Union were formed long before the currency.
You appear to have adopted the false pretence that Europe is inextricably linked to the Euro currency, it is not; the Euro has only been around since 1999. England, Scotland and Wales are part of Europe, they do not use the Euro.
Have a read of this before you reply, it may help before the inevitable insult come flying in (and before DH has had a chance to post too, who'd have thought?!)
http://www.gadling.com/2011/03/01/remembering-europe-before-the-euro/
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Overcast (profile), 28 Nov 2011 @ 8:23am

IP leech nothing - this is fraud and someone needs to take them to task.
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Rikuo (profile), 28 Nov 2011 @ 8:35am

Re: "time to bring the EPO to heel,"
Why are you spending $100 million on a movie?
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abc gum, 28 Nov 2011 @ 8:53am

"Coming To Plates In Europe: Patented Vegetables"

Wait ... is someone going to patent pizza?
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Anonymous Coward, 28 Nov 2011 @ 9:42am

note to self....better hurry up and file patent for babies before someone else does
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Anonymous Coward, 28 Nov 2011 @ 9:43am

Re:
But if you don't give farmer's/agro-businesses patents, they won't be incentivized and will stop growing food and then we'll all starve!

Not starve, just pay more. Any idea how many billions of dollars consumers saved because of productivity increases attributable to Roundup-ready corn?
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Jason, 28 Nov 2011 @ 9:57am

How is this different from Monsanto?
They have patented their seeds, which are a product of the method they use to create the GMO plants. So essenitally the US condones this as we practice it. I can see that one method is natural cross breeding and one is Genetics, but let's face it, genetic tinkering is just cross breeding on steroids. Eventually it will get done, but this is faster.

However the point I am trying to make is monsanto has a patent on a seed, and farmers have been sued for growing plants they did not plant because wind drifted the seeds or (i think) in one case the seeds were mixed in with other seeds.

I would think that after you buy the seeds, if your planted crops produce seeds you would be free to use them. I do not think this is the case.
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Anonymous Coward, 28 Nov 2011 @ 9:58am

Re: Re:
"Any idea how many billions of dollars consumers saved because of productivity increases attributable to Roundup-ready corn?"

Apparently none, considering the rise of corn prices worldwide.
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MrWilson, 28 Nov 2011 @ 10:50am

Re: Re:
"Interestingly, Monsanto director of public affairs Brad Mitchell, recently made the following comment: 'The main uses of GM crops are to make them insect tolerant and herbicide tolerant. They don't inherently increase the yield. They protect the yield.'"

http://www.sourcewatch.org/index.php?title=Monsanto_and_the_Roundup_Ready_Controversy
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MrWilson, 28 Nov 2011 @ 10:52am

Re:
I'd like to see someone actually get this patent approved. It would bring down the patent system with its absurdity. How much obviousness, prior "art," and simultaneous "invention" do you need to get a patent invalidated?
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Keith (profile), 28 Nov 2011 @ 10:55am

I'm gonna patent:
I'm going to patent "having sex with my wife to produce offspring with brown hair".

(We both have brown hair, and so do our kids, so it's a working method and product, right?)

Of course, then I'll get challenged on similar grounds, back off the "method", and hopefully get the patent for just brown hair itself.

If I can get this to fly (and I'm pretty sure I can, the way patents get approved these days) I figure I can squeeze the world for a cool couple billion.
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Anonymous Coward, 28 Nov 2011 @ 11:33am

Re: I'm gonna patent:
Your wife must really be capable, if she can service enough people to make a couple of billion.
Can you post a photo?
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Anonymous Coward, 28 Nov 2011 @ 11:41am

Re: Re: Re:
"Interestingly, Monsanto director of public affairs Brad Mitchell, recently made the following comment: 'The main uses of GM crops are to make them insect tolerant and herbicide tolerant. They don't inherently increase the yield. They protect the yield.'"

http://www.sourcewatch.org/index.php?title=Monsanto_and_the_Roundup_Ready_Controversy

If you decrease depredation by insects and control weeds (which have adverse impacts on corn yield) what do you think the overall affect is? He should have been more clear and said, "they protect the [optimal] yield."
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Anonymous Coward, 28 Nov 2011 @ 12:26pm

Re: "time to bring the EPO to heel,"
You, sir, have just validated ever notion that you are an idiot.
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MrWilson, 28 Nov 2011 @ 1:34pm

Re: Re: Re: Re:
That's fine. Add that word to the sentence before it also: "They don't inherently increase the [optimal] yield."
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abc gum, 28 Nov 2011 @ 2:16pm

Re: Re: Re:
Heh - that's funny
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Skyclad Starchild, 28 Nov 2011 @ 4:32pm

Patents In Food
Has it been proven safe to put patents in food? Don�t you think there are too many food additives already? Unless of course these are 100% pure and natural organically-grown, chemical-free patents, then I suppose they might be beneficial in an alternative-medical, possibly homeopathic form.

We need to nurture our Mother Earth Gaia, and treasure the fruits She gives us.

Are patents recyclable?
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Atkray (profile), 28 Nov 2011 @ 6:04pm

Re: Patents In Food
I read it as a patent on food, thus making it some sort of additive or condiment. I would have to conclude then that any food with a patent on it cannot possible qualify as "organic" or "natural".
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Anonymous Coward, 28 Nov 2011 @ 7:25pm

Perfectly Simple Fix
This is a fine example of a junk patent being given to rent seekers. Rent seekers get paid, not because of what they have done, but because of what they own. It has never previously been possible to own the genetics of an organism bred conventionally. The progress of agriculture relied on that. But the lawyers and the rent seekers do not care. They want to own something, have lawsuits over it, then collect the rent. The damage to the economy, caused by the resulting litigation, plus the chilling effect on agricultural innovation, will be vast.

There is a perfectly simple fix. Stop attaching government granted monopoly privileges to patents. Repeal that part of the law. Yes, that amounts to instant free licenses for all. The rent seekers miss out, boo hoo. The junk patents then do no harm, because they cannot be used to start litigation. Society benefits by the cessation of expensive patent litigation, thereby greatly reducing the cost of the patent system. The freeing up of genetics allows agriculture to progress as before. There are seven billion people to feed, remember?
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staff, 29 Nov 2011 @ 7:48am

another biased article
"whose-side-are-they-on? "

Indeed!

Masnick and his monkeys have an unreported conflict of interest-
https://www.insightcommunity.com/cases.php?n=10&pg=1

They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world�s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don�t have any.
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Anonymous Coward, 29 Nov 2011 @ 8:43am

Re: How is this different from Monsanto?
The Monsanto thing was that you could purchase the seeds, plant the crops, but any seeds coming from those crops you could not sell.

If I remember correctly, the farmers that were sued were ones that had purchased Monsanto seeds and non patented seeds, planted/harvested crops, and the Monsanto seeds were mixed with non patented seeds and sold.

I think the whole business of patenting anything that is controlled a great portion by mother nature is total bs.
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Anonymous Coward, 29 Nov 2011 @ 8:44am

Re: I'm gonna patent:
What happens when these brown headed people get older and their hair turns to gray. Do you pay them the money back, or do you give the money to the person that patented gray hair?
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Cerberus (profile), 17 May 2012 @ 5:49am

Re: Re: "time to bring the EPO to heel,"
Not to mention that no-one is even considering the abolishment of the Euro: the only thing at issue now is whether or not Greece can stay in the Euro (my opinion is and has always been that it should not have joined, but, now that it is in, we should do all we can do keep it in).
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WorBlux, 29 Nov 2015 @ 9:54pm

Plant Patents.
In the U.S. you can patent most plant cultivars. However it's a special category and only limits asexual propagation.

But this broccoli method is an essentially bogus patent. With conventional breeding cycles there are really only two pairs of things that change, the experiment design and data collection, and the data analysis. That data analysis is math, which is not patent eligible so simply applying it to another general process does not make it patent eligible either. There may be a novel process involved in the collection of data points (measuring potentially anti-carcigenic compounds) but if that is the case you can leave the breeding application out and simply patent that method instead. If it isn't patentable on it's own (say any skill biochemist could implement the method or an equivalent one) then applying using it in conventional plant breeding can't be patentable either.
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