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Patent controversy

July 21, 2010

Produce created using special methods of gene marking warrant patent protection, companies say. But opponents counter that the techniques only speed up a natural process and doesn't deserve special status.

Montage of a huge tomato growing out of green farmland
What's natural and what's patentable? The EU's patent office appeal board will decideImage: picture-alliance / Bildagentur Huber

Plant Biosciences, a British company, was awarded a patent in 2002 for a method of selectively increasing the level of glucosinolates - a potentially anti-carcinogenic substance found naturally in broccoli.

The company has said its breeding techniques were advanced enough to be different form conventional selective breeding and thus deserved patent protection. The Israeli Ministry of Agriculture has developed similar means of creating a tomato with reduced water content. Both cases are being heard this week by the European Patent Office's Enlarged Board of Appeal in Munich.

Using a mix of classic techniques and technology the Plant Biosciences said its products contain traits "not available in the 'population' of modern cultivated broccoli."

"Even with modern techniques, implementing such 'wide crossing' strategies […] remains a significant technical challenge," the company said in an e-mail to Deutsche Welle.

Biological processes can't receive patents

Broccoli could determine the way Europe's biological patents are awardedImage: AP

Current patent law in the European Union states that no purely biological process is patentable. Opponents of the awarded patents have said that the processes Plant Biosciences and the Israeli ministry use fall within the realm of biological processes.

Plant breeders have used selective breeding for centuries to create more robust plants and crops and to increase yield sizes. The new techniques make that process faster, and possibly more reliable, according to opponents, like the Germany-based company Limagrain, which is among the parties contesting the patent.

Species protections laws in Germany allow plant breeders and farmers to use any sort of produce in their own breeding practices. This would no longer be legal if the products created were included under patent protections, according to Limagrain.

New types of plants, such as crops that resist droughts or are less susceptible to flood damage, are regarded to be one way developing nations could increase agriculture yields. Their breeding processes would be severely limited if companies are allowed to patent their produce in addition to the technique used to create it.

"If patents on broccoli and tomatoes are not denied, then the flood gates will open," said Christoph Then, a patents advisor for Greenpeace, in a statement. "A small number of agriculture and food companies could in future control all food production, meaning increased dependence and prices for farmers and consumers."

The EPO's appeal board is not expected to rule on the cases until October.

Author: Sean Sinico/Sonia Phalnikar (dpa/AFP)
Editor: Cyrus Farivar