On 19 September 2019, the European Parliament almost unanimously adopted a resolution calling for an end to patents on products derived from conventional breeding, including crossing and selection. As a result of the adopted resolution, the European Parliament is now able to formulate input that can be brought into the proceedings before the Enlarged Board of Appeal of the European Patent Office.
Back in June 2017, the European Patent Office, on the explicit advice of the European member states, decided not to grant any more patents on plants that have only been derived from conventional breeding. This appeared to put an end to a discussion about plant breeding that started back in 2012.
However, in December 2018, the Technical Board of Appeal of that same European Patent Office cancelled that decision, because it is not in line with the European Patent Convention. The highest legal body of the EPO, the Enlarged Board of Appeal, is now looking into the matter.
What is the impact of the resolution?
In principle, the European Parliament does not have a say over the European Patent Convention as this involves 38 member states and not just the EU.
The Enlarged Board of Appeal will need to decide what the intention of the 38 members states was when they drew up the European Patent Convention. This means that although it is possible for the EU to say something about what its intentions were, this may not be enough for the Enlarged Board of Appeal.
Hard to predict
The Enlarged Board of Appeal often concurs with the interpretation of the European Court of Justice in legal proceedings. However, in this case the Technical Board of Appeal and the European Parliament have conflicting views on the matter, which makes it hard to predict what the outcome is going to be.