Unpatentable Vegetables Are Now Patentable In Europe

from the as-such dept

Wed, Apr 1st 2015 1:37pm — Glyn Moody

As Techdirt has reported, in the US, software patents are getting harder to obtain as the US Patent Office applies the important Alice v. CLS Bank ruling from the Supreme Court. In Europe, "programs for computers" are explicitly excluded from patentability according to Article 52 of the European Patent Convention -- but "only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such." That cunningly opaque distinction between "programs for computers" and "programs for computers as such" has allowed thousands of patents for the former to be granted, even though they differ very little from the latter.

That trick worked so well, it seems that the European Patent Office (EPO) has decided to apply it to another area: plants. Once more, the European Patent Convention states quite clearly:

European patents shall not be granted in respect of:

...

plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof.

Despite that, we have the following news reported by Intellectual Property Watch: The highest court of the European Patent Office has declared that plants or seeds obtained through conventional breeding methods are patentable.

...

The Board of Appeal found that the exclusion of essentially biological processes for the production of plants does not extent to a patent claim for a product that is directly obtained from or defined by such a breeding process, the EPO said.
That's pretty close to the "as such" trick. Of course, it's not so surprising that a specialist patent court at the EPO should hand down a judgment in favor of granting more patents, just as has occurred in the US. What's troubling is that if and when the completely independent Unified Patent Court system is introduced in Europe, there will be no way to rein in the patent courts as has finally started to happen in the US.

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Filed Under: eu, europe, patents, vegetables

10 Comments

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Anonymous Coward, 1 Apr 2015 @ 1:53pm

This an April fools joke?

I'm not sure how this
"plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof."

Can possibly coexist with this
"The highest court of the European Patent Office has declared that plants or seeds obtained through conventional breeding methods are patentable.
"
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Anonymous Coward, 1 Apr 2015 @ 2:33pm

Um, wouldn't Mendel's work and, I don't know, pretty much EVERY BREEDING PROGRAM EVER be prior art?
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- Anonymous Coward, 1 Apr 2015 @ 2:42pm
  
  Re:
  With the "conventional breeding methods" part you would hope so, but apparently not.
  
  Though as we know here in the US with Roundup Ready crops, even lab created varieties are problematic too.
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  - Anonymous Coward, 1 Apr 2015 @ 4:35pm
    
    Re: Re:
    Mengele shmengele, putting a clearly human right violating person in position of prior art is against Human Rights. Brcause what that person might have done is obviously none existant. Sure it might violate everything we stand for but praise the lord the so called "nazis" got a clean slate after being imported to the greatest Nation that ever was and will be, called today the United States of 'murica! The guy that got the USA to the moon aka Werner van Braun wasn't of course a Nazi or involved in killed thousands of Jews, NO! He was a patriot of the USM (United States of 'Murica) Like he said according to a musician: Once they went up who cares where the bombs go down?
    
    S
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    - Mason Wheeler (profile), 2 Apr 2015 @ 7:00am
      
      Re: Re: Re:
      Not Mengele, Mendel, the father of the science of genetics, who developed the idea of genes through his experiments in selective breeding of plants.
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Anonymous Coward, 1 Apr 2015 @ 5:16pm

It's not nice to patent Mother Nature.
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Zonker, 1 Apr 2015 @ 5:20pm

Next, the EPO could declare that human babies obtained through conventional breeding methods are patentable using the same argument. Think of the benefits to the public if we required people to obtain a license in order to reproduce! And we could deny licenses to whoever we don't approve of. At least one member of the EU was interested in that in the not so distant past.
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- Anonymous Coward, 2 Apr 2015 @ 5:04am
  
  Re:
  Goodwins law strikes again.......
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Padpaw (profile), 22 May 2015 @ 5:53pm

the next logical step for them is to bribe corrupt governments in various countries to make home grown food illegal. have a garden that grows any type of food congrats your going to jail for trying to survive
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- Padpaw (profile), 22 May 2015 @ 5:54pm
  
  Re:
  sorry meant to post this on the may 22nd article clicked the wrong tab by mistake
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