Unpatentable Vegetables Are Now Patentable In Europe

As Techdirt has reported, in the US, software patents are getting harder to obtain as the US Patent Office applies the important Alice v. CLS Bank ruling from the Supreme Court. In Europe, “programs for computers” are explicitly excluded from patentability according to Article 52 of the European Patent Convention — but “only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.” That cunningly opaque distinction between “programs for computers” and “programs for computers as such” has allowed thousands of patents for the former to be granted, even though they differ very little from the latter.

That trick worked so well, it seems that the European Patent Office (EPO) has decided to apply it to another area: plants. Once more, the European Patent Convention states quite clearly:

European patents shall not be granted in respect of:

plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof.

Despite that, we have the following news reported by Intellectual Property Watch:

The highest court of the European Patent Office has declared that plants or seeds obtained through conventional breeding methods are patentable.

The Board of Appeal found that the exclusion of essentially biological processes for the production of plants does not extent to a patent claim for a product that is directly obtained from or defined by such a breeding process, the EPO said.

That’s pretty close to the “as such” trick. Of course, it’s not so surprising that a specialist patent court at the EPO should hand down a judgment in favor of granting more patents, just as has occurred in the US. What’s troubling is that if and when the completely independent Unified Patent Court system is introduced in Europe, there will be no way to rein in the patent courts as has finally started to happen in the US.

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