THE BROCCOLI CASE (Plant Bioscience)
EP 1069819 B1 - Method for selective increase of the anticarcinogenic glucosinolates in Brassica species
EP 1069819 B1 20020724 WO 9952345
Title: Method for selective increase of the anticarcinogenic glucosinolates in Brassica species
Proprietor: Plant Bioscience Ltd
Appeal: Limagrain, Syngenta
Status: pending at Enlarged Board of Appeal (T 0083/05)
Claims: Method for the production of Brassica oleracea by breeding and selecting. Edible Brassica plant, edible portion, seed. Broccoli inflorescence. No GE.
This Broccoli is set to write patent history in Europe.
In 2002 the European Patent Office (EPO) granted a patent to UK company Plant Bioscience on a method for increasing a specific compound in Brassica species, i.e. Broccoli, through conventional (marker assisted) breeding methods. The patent includes the breeding methods, as well as the broccoli seeds and edible broccoli plants obtained through these breeding methods.
It is a patent that covers conventional seeds and conventional breeding methods.
Some of the claims:
Claim 1: A method for the production of Brassica oleracea (...) which comprises:
(a) crossing wild Brassica oleracea species with Brassica oleracea breeding lines; and
(b) selecting hybrids with levels of 4-methylsulfinylbutyl glucosinolates, or 3-methylsulfinylpropyl glucosinolates, or both, elevated above that initially found in Brassica oleracea breeding lines.
Claim 2: The method according to claim 1 which additionally comprises:
(c) backcrossing to broccoli breeding lines; and
(d) selecting plants with elevated levels of 4-methylsulfinylbutyl glucosinolates, or 3-methylsulfinylpropyl glucosinolates, or both.
Claim 4: The method according to claim 1 which additionally comprises:
(c) screening [plants] for the specific SI alleles [marker genes] with RFLP markers [method for gene diagnosis]...
Claim 9: An edible Brassica plant produced according to the method of any one of claims 1 to 6.
Claim 10: An edible portion of a broccoli plant produced according to the method of any one of claims 1 to 6.
Claim 11: Seed of a broccoli plant produced according to the method of any one of claims 1 to 6.
However, the Broccoli-patent has become a test case for the patentability of conventional seeds and breeding methods. The patent has been challenged and the EPO's highest court will have to rule on its validity.
Plant breeding companies Limagrain and Syngenta have filed oppositions to the patent. The companies argue that this patent has to be revoked as its claims refer to an essentially biological process, in other words to conventional breeding. Essentially biological processes are not patentable under the EU directive 98/44/EC and Art. 53(b) EPC (European Patent Convention).
The EPO has referred the case to Enlarged Board of Appeal, the highest court within the EPO. The ruling of the Enlarged Board of Appeal will be final and will serve as case law for all further patents on conventional seeds. Therefor the case may have major implications for the debate on patents on seeds in EU and even worldwide on the one side or the other: If the patent is revoked it might become more difficult for similar patents on normal seeds to be granted.But on the other hand it is likely that the companies mainly filed their oppositions to get the European Patent Office to confirm, rather than to revoke the patentability of conventional seeds. Since Syngenta itself is applying for similar patents (e.g. on rice ), there is a high risk that the EPO and the seed industry will deal with this case in a way to extend corporate control even further.
There needs to be a broad public discussion and political pressure to stop the EPO from taking this approach. This is why a number of NGOs and farmers' organisation from around the world have written an open letter to the EPO Enlarged Board of Appeal. This Global Appeal is open for further signatories. [Read the Global Appeal and Sign now! ] This website will keep you informed on the further develoment in this important test case.
The case (T 0083/05, G2/07) is currently pending before the EPO's Enlarged Board of Appeal for a ruling. See details. Oral public proceedings are sceduled for 20th and 21st of July 2010.
N.B.: After starting the Broccoli case in 2007, a second case related to “essentially biological processes for the production of plants and animals” (Art 53b of the European Patent Convention) was forwarded to the Enlarged Board of Appeal of the European Patent Office in May 2008. The patent EP 1211926 on tomatoes is owned by the Ministry of Agriculture of the State of Israel. Together with the first case (G2/07) this second case (G1/08) will become precedent for the question of patentability of conventionally bred plants and animals in Europe.
Download signature list against the Broccoli patent: Sign-on_Broccoli_patent 49 Kb
Third Party Observations 65.50 Kb
Disclaimer: The documents presented here for download are copies of those from the European Patent Office (EPO) and the World Intellectual Property Organization (WIPO). Legally binding are only the originals available from the organizations themselves.
WO... numbers are world patent applications, at WIPO
EP... numbers are European Patents
EP...A. numbers are European patent applications
EP....B1 numbers are European Patents as granted
EP....B2 numbers are patents as granted after the closure of a dispute
Within the juridical structure of the EPO:
Opposition is the First Instance
Appeal is the Second Instance
Enlarged Board of Appeal is the highest court within the EPO, which has the final say.