no patents on beer! — Legal background

No patents on beer!

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Legal background: Close the loopholes!

European patent law forbids patents on „plant varieties and animal species as well as on essentially biological processes for the breeding of plants and animals“ (Article 53 of the European Patent Convention and Article 4.1 of the EU Directive 98/44 .)

This prohibition has been controversially discussed in recent years. In particular, in regard to the following points:

  1. What are methods of „essentially biological processes“ for breeding?
  2. When are processes non-patentable? And what about the plants and animals bred in this way – can they still be patented?
  3. How can patented inventions in genetic engineering be prevented from encroaching on conventionally bred varieties?

The EU Commission, the European Parliament and the EU member states have now determined that neither plants and animals derived from conventional breeding, nor associated methods can be patented. Patentable inventions are confined to the field of genetic engineering when e.g. new genetic material is inserted directly into cells.

The European Patent Office has already granted over a 100 patents on conventional breeding. In December 2016, the granting of such patents was put on hold. However, in the meantime, the EPO has created further loopholes: In future, the EPO still intends to grant patents in cases where random mutation was used in breeding, or where methods for the selection of plants and animals are claimed. This is clear from current EPO documents. This is contrary to the legal interpretation of the EU as formulated by the EU Commission.

Moreover, the scope of the patents currently granted by the EPO is not limited. If plants or animals with specific traits are patented, then the patents cover all plants or animals with those particular traits, independently of whether they were derived from conventional breeding or created through genetic engineering. This undermines the prohibition of patents on conventional breeding.

These problems are reflected, for instance, in the patents granted to the brewing companies Carlsberg and Heineken in 2016. The patents cover the barley, the brewing process and the beer itself. At the same time, they cover all barley plants with those particular traits, independently of how they were bred. If the European Patent Office overrides the EU in this matter, then it will in future continue to grant patents, such as those granted on barley and beer. There are already patents covering cereal grains, methods of baking and bread.

The governments of Europe need to act now. Through the Administrative Council of the European Patent Office, they can, as participating members, jointly enforce a more rigorous interpretation of the existing prohibitions. The governments of the participating EU member states are represented in the Administrative Council; and each one has a vote. This means that a majority vote (three-quarter majority) in the Administrative Council is sufficient to decide on legally binding rules regarding the interpretation of existing prohibitions.

In fact, in February 2017, the EU governments decided on a joint initiative at the Administrative Council of the EPO. A decision could be made as early as June 2017.

The EU member states participating in the Administrative Council of the EPO must now ensure that the position of the EU is established in legally binding rules of interpretation.

The prohibitions should be defined as follows:

The German goverment must now take action to limit the power of the EPO. Therefore, send a letter now to the German Minister of Justice, Heiko Maas – he is the responsible minister in Germany.

Click here to see the report on patents on plants and animals: