Sir

The news (Nature 403, 3; 2000) that the European Patent Office (EPO) has reversed its decision in the Plant Genetic Systems case gives cause for concern. How and why has the Enlarged Technical Board of Appeal — which made the original decision — changed its mind?

Originally, the application for a patent on Plant Genetic Systems plants was refused because the EPO decided that the material described as ‘plant cells and their resulting plants’ was de facto a plant variety and was therefore unpatentable. The EPO said that the stable incorporation of foreign DNA into the genome of an existing variety merely made another variety — and thus the reconstituted plants were covered by the regulations of the International Union for the Protection of New Varieties of Plants.

The original Enlarged Board of Appeal took the most narrow definition possible of a plant variety — that is, that the incorporation of a single gene is enough to differentiate one variety from another.

Yet the EPO has now reversed its decision, based on the alleged need for an even narrower definition. This means the EPO has now defined a plant variety as being less than a single gene's separation between two plant lines.

European patent law concerning genetically modified organisms is in a mess, and needs to be completely rethought to balance the commercial, ethical and scientific aspects of this difficult question. The European Directive on Patenting Biotechnological Inventions is full of ambiguity and contradictions — so much so that two European Union states have already referred it to the European Court.

The EPO's latest decision has made it harder for biotech companies to argue their case from an environmental perspective. How will they be able to say that their products are no more risky than conventionally bred crops, while at the same time arguing that their plant and animal creations are patentable inventions and thus, by definition, new? It will not take long for organizations such as Greenpeace to start using this as an argument against genetically modified organisms.

On the same page as the news item about the EPO decision was a report that the US Patent Office has tightened up by disallowing ‘speculative claims’. Even more interestingly, these new guidelines are to remain open for public comment on a website until 22 March. This should be a new model of operation for the EPO, whose decisions seem arbitrary and out of touch with the increasing public concern on the patenting issue.

How about an open consensus conference on patenting living things, organized by the EPO, as the basis for an equitable European way out of the quagmire of patents for genetically modified organisms?