The recent decisions G2/12 and G2/13 from the Board of Appeal of the European Patent Office («EPO»), of 25th March 2015, have been received not without a certain amount of controversy.
Both decisions recognise the possibility of patenting products related to plants and plant material, which in principle would clash with the prohibition established in article 53 b) of the European Patent Convention, which excludes the patentability of essentially biological production processes for animals and plants. However, the EP establishes an interpretation of said article in the sense that the exclusion of the patentability does not refer to plants and parts of plants (including their fruits), which are the result of said procurement processes, instead it is exclusively limited to the process of obtaining, for example, broccoli or tomatoes, depending on the object of analysis.
These decisions have been received with strong criticism by various international associations, based upon ethical, economic and social considerations. By way of example, the organisation « No Patents for Seeds » manifests that the aforementioned decision may open the door for companies to gain control of the resources necessary for daily life. It alleges that this would result in a concentration in the market and would harm small farmers, who depend excessively on multinational groups, which ultimately harm the consumer. It follows that the controversy does not pivot around the legal arguments defended by the EPO, but rather legislative policy reasons.
For this reason, broccoli and tomatoes offer us a mere starter for what is to come. Biotechnology in both the treatment of vegetable varieties as in its application in medicinal processes marks the way for the future society. In order to carry out an investment, the companies in the sector will ask the state for a prior exclusivity guarantee via patents and other intellectual property rights. The state, in exchange, must find the right balance in order to preserve the common good, since we have as much to gain as we have to lose.
Vilá Abogados
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22nd June 2015
