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‘Though the treasure of nature's germens tumble all together’: the EPO and patents on native traits or the bewitching powers of ideologies
Abstract
The growing criticism of patentability of native traits and genes (of plants obtained by traditional cross-breeding methods of species with the use of molecular biology methods) prompts questions about the constant erosion of boundaries in the field of non-patentability, which has been denounced by authoritative legal writers. But the issue currently at stake is even more worrisome, insofar as these new patents, the volume of which is constantly increasing, are blocking patents and cannot be expected to be circumvented by resort to cross-licensing agreements. Relying on the position expressly adopted by the European Patent Office (EPO) president in the Tomato II case, this paper brings to light the pro-patent bias that affects the functioning of the European patent system. It shows that this troubling phenomenon is rooted in governance issues. Above all, it stresses a deeper factor, namely the dual ideology of an exchange society and of science and technology (the logic of progress) that has dramatically severed the ties between the EPO and people's representative bodies, multi-stakeholder bodies and citizens themselves.
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Notes
By 1960, the choice was made in Europe to protect plant varieties by a sui generis system, the Plant Breeder's Right. The first system of plant variety protection came into being with the adoption of the International Convention for the Protection of New Varieties of Plants by a Diplomatic Conference held in Paris on 2 December 1961.
Tomatoes II – STATE OF ISRAEL/Tomatoes (G1/08) unreported 9 December 2010 (EPO, Enlarged Board of Appeal) and the referral of the Broccoli case G2/13, Broccoli II – PLANT BIOSCIENCE/Broccoli (G2/07) unreported 9 December 2010 (EPO, Enlarged Board of Appeal).
See https://register.epo.org/application?lng=en&tab=doclist&number=EP08749952.
Technical Board of Appeal, 8 July 2013, interlocutory decision, T83/05 [EPO (Technical Bd App) 83/05], OJ EPO 2014, A39, at 24.
Frequently obtained from a microorganism intended to be introgressed into the plant cell (with a promoter) at a specific spot of the genome.
See: Decision of the Administrative Council of the European Patent Organisation of 16 June 1999 concerning the incorporation of Directive 98/44/EC into the Implementing Regulations to the European Patent Convention, OJ EPO 7/1999, p.437. This decision has been heavily criticised has being ‘unlawful’. It has thus been contended that due to the remarkable changes brought about by the Biotech Directive, the implementation of the EU legal instrument would have required a Diplomatic Conference (Godt, 2007 cited in Schneider, 2009a).
The so-called ‘unitary patent package’ consists of a set of three texts: Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the creation of unitary patent protection; Council regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of unitary patent protection with regard to the applicable translation arrangements; and the Agreement on a Unified Patent Court and Statute (2013/C 175/01), (OJEU 20.6.2013, C 175/1).
The preliminary drafts of what would become Regulation (EU) No 1257/2012 (see Council Document 8588/09 of 7 April 2009 on a revised proposal for a Council Regulation on the Community patent: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208588%202009%20INIT [accessed June 2015]) incorporates three controversial articles (Art. 6–8) related to direct and indirect infringements of patent rights. Because of the sometimes intricate nature of these issues, it was feared that national courts involved in the application of these provisions might ‘see an occasion or an obligation to submit the matter to the Court, in particular if they have still little experience in patent law’ (Kraßer, 2011, p.7). To circumvent these difficulties, it was suggested these provisions be removed from the Regulation and introduced in the international agreement on the unified court. See the debate between Kraßer and Winfried Tilmann (2012, w9, para. 15).