5 questions for Judith de Roos
'Take care with patent law decision'
The European Patent Office has decided that it is no longer possible to apply for a patent on classically bred plants. The champagne was uncorked at branch organization Plantum. Lawyer Judith Roos, however, still has a hand. After 7 years of struggle, it is not yet possible to say whether breeders and farmers can count on varieties without patent rights.
Since 2010, there has been a struggle to maintain access to plants obtained through classical breeding. This is jeopardized by the granting of patents. On June 29 decided the European Patent Office that plants resulting from 'essential biological processes' cannot be protected under patent law. That is beautiful. Judith de Roos, lawyer at the Plantum industry association, explains why not everything is in order.
Finally, the European Patent Office has taken a decision. Can the file be closed?
“Not quite yet. We did drink champagne after our press conference on June 30, but a number of things still need to be cleared up. For example, there are a large number of patent applications on plants. The question is how the patent office will deal with this. We are therefore waiting. The focus is now on classical breeding methods. It remains to be seen how plant breeding methods that make use of a technical intervention, such as induced mutations (exposure to chemical substances or radiation), will be dealt with. What has been in the news a lot is a special property in malting barley. Carlsberg and Heineken have applied for a patent for this. There is much to do. Because the trait has been selected from descendants of a large number of random mutations, it is questionable whether this is really inventive. This patent cannot be rejected on the basis of the exception to classical breeding, but perhaps for another reason. If a patent is granted on a technically obtained property, but the same property is later found to occur in nature, the patent does not apply to the use of those natural plants. That is also good news.”
What is the effect of the decision on existing patents?
“For example, a patent has already been granted on an onion variety that has resistance to downy mildew. It remains to be seen how the agency will deal with this now, but it is not expected that this will be reversed. It is possible, however, that this patent will be challenged in national courts. However, most patents are still pending grant, such as clubroot resistance in cabbage. These applications are now all expected to be rejected.”
Plantum is extremely busy with this case. Why the urgency?
“Plantum does this together with VBN, LTO, Bionext and GroentenFruit Huis. For the plant breeding sector, of which Plantum is the trade association, diversity is of great importance for breeding. Ultimately, this is also in the interest of the farmer. By stimulating diversity, you stimulate innovation. As a result, the farmer continues to have a choice from a larger number of innovative products. Moreover, it does not benefit the farmer to transfer licenses to several parties. The decision is aimed at Europe. It has no effect on patents in other countries.
Is there a country where the negative effects of patent law are noticeable?
“You see that especially in the United States. The problem is in large arable crops, including many GMO varieties. In seed potatoes, for example, this is even less the case. Corn is a crop that is covered by many US patents. This means that breeders will only crossbreed with their own varieties. This can encourage inbreeding and impoverishment of the species. In the long term, this is a bad development. Small players are thus pushed out of the market. †
When are you really satisfied?
“The ruling is a good basis for the further course of events. It remains to be seen how it will play out in practice. How the patent office itself deals with the new policy and whether patent applicants will discover new loopholes in the law. We are therefore a bit careful with our jubilation and want to wait for practice first.”
Niels van der Boom
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