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Broccoli and tomato patents under scrutiny at European Patent Office

At the European Patent Office in Munich, there are some tasty patents on the table for debate. The office's appeals board is debating whether patents on broccoli and tomatoes can be allowed.

Broccoli

A weapon in the fight against cancer: broccoli

Vegetables are, whether we like them or not, a healthy dietary choice. Broccoli, for example, contains potentially cancer-fighting properties. In 2002, a British company called Plant Bioscience Ltd. (PBL) was granted a patent by the European Patent Office (EPO) for a method it developed which identified the anti-carcinogenic properties of broccoli, enabling the company to selectively breed plants with a high concentration of this property.

But the patent also covered the plants selected and produced by this method, not just the technical process itself, essentially giving the British company a European patent on broccoli. A Swiss company filed an appeal with the EPO, saying that what is essentially a biological process is not patentable.

A similar patent was granted in 2000 to an Israeli company that had found a way to breed tomatoes with less water, but an appeal was lodged against that in 2004 on the same grounds.

Tomatoes on a vine

Tomatoes with less water are also up for patent talks

Starting Tuesday in Munich, the EPO's Enlarged Board of Appeal will review the two patents to determine whether these breeding processes and selection methods are biological processes or patentable technological processes.

Produce problems

In Germany, however, many people have already decided: you can't put a patent on vegetables. There are fears that if the patent is allowed to stand, it will have negative consequences for independent farmers and consumers.

"In general, patents like these cause a concentration of the market," said Christian Then, a patent advisor for Greenpeace, on German ARD television. "Selection is reduced, and prices go up."

Patents like this exist already, but the current decision on the broccoli patent will set a precedent and affect future cases regarding plant or animal patents.

"If it's confirmed, the floodgates would be open," said Then. "There are already around a thousand patent applications for produce and livestock breeding."

Josef Hecker is a German farmer with a small output of organic produce. He told ARD he's already seen the effects of patented produce.

"Recently on the produce market there has been such a concentration of patented goods that other types are starting to disappear;" Hecker said. "People are deciding to buy the patented products, and other, worthy kinds of produce are becoming hard to find."

A scientist in a lab with plants

PBL claims it took innovative technology to cultivate its broccoli

Responsible for innovation, not impact

The European Patent Office points out in a statement on its website that its only responsibility is to determine whether a new technology is innovative and applicable enough to be given a patent.

In an email to Deutsche Welle, PBL said its broccoli breeding techniques were advanced enough to warrant patent protection.

"The inventors used a mixture of classic techniques and technology assisted selection processes to access very widely divergent members of the broccoli family," said PBL's statement. The selected nutritional traits were "not available in the 'population' of modern cultivated broccoli."

"Even with modern techniques, implementing such 'wide crossing' strategies […] remains a significant technical challenge."

Broccoli politics

According to the patent office, assessments of social, economic, or ecological implications are best left to lawmakers and regulatory bodies.

That means new European regulations that specifically ban patents like these would be needed to stop the broccoli initiative - an idea Greenpeace's Christoph Then supports.

Ilse Aigner

Agriculture Minister Aigner doesn't want to see patents for produce

"Bans that are currently there aren't clear enough. There are exceptions to the bans, and it's possible to get around them," he said. "The only way to solve the problem is politically. The patent laws have to be changed and clear bans implemented."

PBL agrees to some extent - patent restrictions should be in place for things like abstract ideas or laws of nature. But they see their innovation as a clear technological advancement.

"Where human ingenuity is involved in the creation of innovations to achieve important outcomes, we are in favour of patentability, provided the other patenting requirements (novelty, inventive step) are met."

From the political arena, German Agriculture Minister Ilse Aigner is against produce patents. She told ARD television that such patents would corner the market.

"If we're talking about living organisms, produce, and livestock, then I think there shouldn't be any exclusive rights," she said. "There can't be a financial gain for just one person or company."

The appeals board at the European Patent Office is set to wrap up the debate on the broccoli patent this week, but the decision will probably not be made public until later in the year.

Author: Matt Zuvela
Editor: Susan Houlton

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