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The European ban on the patenting of plants was declared invalid on 5 December by the appeal office of the European Patent Office. This means that companies can still apply for a patent on living organisms.
Editorial office / Brussels

The ban was instituted in 2017 after broad social resistance. At that time, several hundred patents had already been granted on products of classical breeding. There were also about a thousand controversial patent applications on plants, animals and biological processes waiting to be assessed.

Patent on life

Civil society organizations rebelled against this, because it was seen as an attempt by industry to apply for a patent on life. It would, among other things, lead to the monopolisation of agriculture and food production. The European Commission then indicated that it had never been its intention that patents on naturally obtained plants would be possible. Subsequently, the board of the European Patent Office adapted the rules on patentability of plants.

The appeals chamber now rules that this amendment is in conflict with an existing article in the European Patent Convention and therefore invalid. A consideration is that nowadays it is often impossible to distinguish ‘plants obtained with an essentially biological method’ from plants obtained with modern techniques, such as CRISPR-Cas. If one of these two groups is unpatentable, it creates legal uncertainty.

Pepper plant

The case was brought by a breeder who had developed a pepper plant with genetic markers that can be associated with an exceptionally dark green color. More information about this ruling and its implications can be found on the website of NLO, patent and trademark attorneys.