EPO Decision Potentially Restores Broader Global IP Protections For Plants

As global climate change continues largely unabated, the agricultural scientists of the world remain hard at work developing plants suited to flourish in and to feed the people of an overheated, carbon dioxide-elevated planet. Innovators are investing significant amounts of research and money in development to focus on new plants that absorb increased amounts of carbon dioxide and to focus on food crops that can thrive in elevated temperatures. In view of the investments being made, the robustness of intellectual property protections available to plant innovators is increasingly relevant.

A recent decision T1063/18 of the European Patent Office (EPO) reinstates IP protection to certain plant innovations, potentially allowing innovators to better protect these investments on a global scale. In December 2018, an EPO Technical Board decided that EPO Rule 28(2), which excluded plants and animals obtained by essentially biological processes from patentability, was invalid. This decision restores eligibility of sexually reproduced plants including crop plants and crop products for utility patent coverage in the EPO, pending the outcome of any appeal.

Novel plant innovations are protectable throughout the world via a framework of non-mutually exclusive intellectual property devices, each covering aspects of a plant and its life cycle. Plant variety protection is available in most countries, including the US, EU and Japan, to cover novel varieties of seed-propagated plants.

In the US, “plant patents” are available to protect non-tuberous asexually reproduced plants, including algae and macro-fungi. Utility patents, the most robust of protections, have been available in the US and Japan for some time to protect sexually reproduced plants, as well as plant cells, plant tissues, related methods, genetic sequences isolated from plants, plant cells transformed by genetic sequence, and plant varieties.

In contrast, the past EPO law on the utility patent eligibility of plants and plant parts has been murky at best. Two years ago, in an attempt at clarity, the EPO’s Administrative Council clarified its Directive 98/44/EC as specifically excluding “products exclusively obtained by means of an essentially biological process,” e.g., plants, from patentability. However, the new 2018 decision reverses the Council’s exclusion, placing the EPO’s position on utility plant eligibility in parallel with the US’s and Japan’s.

As a practical matter, if the decision stands, it removes a significant deficiency from the commitment on plant-related innovation to provide food and potentially reduced carbon dioxide levels for the future planet.

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