Munich

The European Patent Office (EPO) has lifted a four-year moratorium on applications for patents on plants and animals, following a ruling by its top appeals board that such patents are not excluded by the wording of the European Patent Convention.

In 1995, a lower board of appeal overruled a patent issued to the Belgian company Plant Genetics Systems on a process for creating plants containing herbicide-resistance genes (see Nature 374, 8; 1995). The board's key reason was that the procedure could be used to create new ‘varieties’ of plants and that plant varieties were excluded from patentability by a clause in the convention.

A similar reason was used by the EPO — which is not part of the European Union but is responsible for implementing the patent convention — to reject an application by the Swiss company Novartis to patent a process for creating transgenic plants containing pathogen-resistance genes, an application which included the plants produced by this process. The EPO president eventually referred Novartis's appeal to the organization's highest legal authority, the ‘enlarged board of appeal’, and asked for its interpretation of the crucial clause 53(b).

In a ruling made public on 20 December, the enlarged board overturned the earlier judgement. It ruled that the exclusion of plant varieties should be interpreted in a narrow sense, not used to deny patents on all plants produced by novel — and hence patentable — biotechnological processes.

Although this ruling brings the implementation of the patent convention in line with recent modifications to the European Union directive on patenting biotechnological processes (see Nature 388, 314 & 393, 200; 199710.1038/40935), the enlarged board made little reference to the directive. It argued from first principles that the exclusion of plant varieties from patent protection had a specific function: to let breeders continue applying their own procedures for plant variety protection, as defined by the International Union for the Protection of New Varieties of Plants.

The board considered that the wording of the patent convention, approved in the early 1970s, had been drawn up deliberately to ensure that plants could be protected either through patents or through traditional plant breeders' rights. It therefore concluded that there had been no intention to exclude plants (or animals) from patent protection as such.

The EPO has already started to process some 1,200 applications for patents on genetically altered animals and plants that have been on hold since 1995.

“This is a landmark decision for the whole seeds industry,” says Walter Smolders, head of the patenting department of Novartis Seeds. He says that the “end to uncertainty about intellectual property” will promote development of useful crops and vegetables.

But the decision has been criticized by the environmental group Greenpeace, which campaigns against the patenting of life forms as “presumptuous and reprehensible”.

Stefan Flothmann, head of the genetic engineering department at Greenpeace Germany, warns that the decision could lead to monopolies in the seeds market, and thus to higher costs and lower quality.

“If the production of seeds and food gets under control by few companies, the agricultural diversity will be reduced to a few patented varieties,” says Flothmann. “In the long term, this is a threat to the world's food supplies.”