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Plants and animals from biological processes declared “unpatentable”

Plants and animals from biological processes declared “unpatentable”

The Enlarged Board of Appeal of the European Patent Office issued opinion G 3/19 (Pepper) today and concluded that plants and animals exclusively obtained by essentially biological processes are not patentable. The Enlarged Board of Appeal of the European Patent Office adopted a dynamic interpretation of the exception to patentability under Article 53(b) of the European Patent Convention (EPC) and held that the non-patentability of essentially biological processes for the production of plants or animals also extends to plant or animal products that are exclusively obtained by means of an essentially biological process.

Background

The Enlarged Board of Appeal is the highest judicial authority under the EPC, which provides for an autonomous legal system that is separate from the European Union. The Enlarged Board’s main task is to ensure the uniform application of the EPC.

Under Article 53(b) EPC, European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals. Rule 28(2) EPC provides that under Article 53(b) EPC, European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process. Rule 28(2) EPC was introduced by decision of the Administrative Council of the European Patent Organisation and came into force on 1 July 2017.

In 2015, the Enlarged Board had concluded in its decisions G 2/12 and G 2/13 within the then applicable legal framework, i.e. before the introduction of Rule 28(2) EPC, that the non‑patentability of essentially biological processes for the production of plants or animals under Article 53(b) EPC did not extend to products that are exclusively obtained by means of an essentially biological process.

In 2018, a Technical Board of Appeal held in decision T 1063/18 that new Rule 28(2) EPC had no impact on the interpretation of Article 53(b) EPC, and followed the Enlarged Board’s earlier decisions G 2/12 and G 2/13.

In 2019, the President of the European Patent Office referred a point of law to the Enlarged Board of Appeal under Article 112(1)(b) EPC concerning the interpretation of Article 53(b) EPC in view of legal and other developments occurring after decisions G 2/12 and G 2/13, and in particular in view of new Rule 28(2) EPC.

Key considerations

In its opinion issued today, the Enlarged Board of Appeal held the referral by the President of the European Patent Office to be admissible within the terms of a re‑phrased question. On the merits of the referral, the Enlarged Board endorsed its earlier findings on the scope of Article 53(b) EPC, which were based on the classical (i.e. the grammatical, systematic, teleological and historical) methods of interpretation. However, the Enlarged Board found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This meant that decisions G 2/12 and G 2/13 did not settle the meaning of Article 53(b) EPC once and for all.

Taking account of the Administrative Council’s decision to introduce Rule 28(2) EPC, the preparatory work on this provision and the circumstances of its adoption, as well as legislative developments in the EPC contracting states, the Enlarged Board concluded that new Rule 28(2) EPC allowed and indeed called for a dynamic interpretation of Article 53(b) EPC.

In adopting this dynamic interpretation, the Enlarged Board abandoned its earlier interpretation of Article 53(b) EPC in decisions G 2/12 and G 2/13. It held that, after the introduction of new Rule 28(2) EPC, Article 53(b) EPC was to be interpreted to exclude from patentability plants, plant material or animals, if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process.

In order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board ruled that the new interpretation of Article 53(b) EPC given in G 3/19 had no retroactive effect on European patents containing such claims which were granted before 1 July 2017, or on pending European patent applications seeking protection for such claims which were filed before that date.

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Patent for Syngenta melons that stay on vine longer

New melon plants whose fruit stays on the vine longer are the subject of a new patent for Syngenta Participations AG.

Melon plants with fruit that stays on the vine longer are the subject of a new patent for Syngenta Participations AG.

The melons produced have high total solids and/or firm flesh, the Swiss agri-business also says in patent documents published by the US Patent and Trademark Office under the title: “Inbred melon lines ME007 and ME009.“

Explaining the background to the invention, Syngenta said many cantaloupe varieties are climacteric, meaning ripening is associated with ethylene production, resulting in abscission (‘slip’) from the vine. “Climacteric fruits may abscise from the vine prior to optimal sugar deposition, which may adversely impact taste. Accordingly, it would be desirable to develop improved melon plants having improved taste, shelf life and/or shipping characteristics,” it said.

In a summary of the invention, Syngenta said that in representative embodiments, its invention provides “novel non-climacteric melon plants that produce fruit that are able to remain on the vine longer (i.e., they do not abscise or “slip” from the vine) than a climacteric melon, which may result in improved taste and/or sweetness.”

It also talked about representative embodiments where “the melon plants of the invention are characterized by two or more of these characteristics: non-climacteric fruit ripening, a fruit having a firm flesh and/or a fruit having high soluble solids.”

And it said that in further exemplary embodiments, “the melon plants of the invention are characterized by fruit having an enhanced sugar (e.g., sucrose) content and/or a sweeter taste and/or having a longer field shelf life and/or post-harvest shelf life.“

The patent was granted last November 4. Read about it here by clicking on ‘full text’.
 

Photo: a conventional melon and slice by Renee Comet via Wikimedia Commons.

 

 

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Patent applications reveal ways to improve tomato production

512px-ARS_Ohio_processing_tomato

 

Various inventions promising improved tomato production are covered in patent applications recently published by the US Patent and Trademark Office. In this small sample we look at a vine tomato that stays firm longer, tomatoes with higher sugar content, and greenhouse lighting helping insects find – and thus pollinate – flowers more easily.

Vine tomato with longer shelf life

California’s Arcadia Biosciences seeks a patent for “tomatoes that soften more slowly post-harvest due to non-transgenic alterations in an expansin gene.” In its patent application it explains new tomato varieties are needed that have the desirable qualities of vine-ripened fruit (in taste, texture and colour) but reduced spoilage. However it also notes some consumers don’t like genetically modified foods.

It says it has a solution with its (non–GMO) method, which is the product of a human-induced mutation in a tomato gene – LeExp1 – linked to fruit softening.

Tomatoes with higher sugar content

Tomatoes with improved fruit quality, such as increased levels of starch, soluble solids, and/or sugars are described in an application from the governing board (Regents) of the University of California. It says the ripe fruit has sugar levels (fructose and glucose) at least 10% higher, usually at least 30% higher, than control plants.

The method for which the patent is being sought involves producing plants that deliver green fruit with increased chloroplast development. This is achieved via a rise in what is known as GLK (Golden2-like) activity in the green fruit and results in an increase in the products of photosynthesis and carbon fixation, such as starch and eventually soluble sugars, in ripe fruit.

Putting flowers in their best light

And from Finland comes an application for an invention using special lighting in greenhouses to enhance insect pollination of plants, such as the tomato.

Valoya, a Helsinki-based provider of energy efficient LED lights, says the best effect is achieved when the emission peaks of the lighting have a high reflectivity from flowers and/or high sensitivity in the insect vision. “The insects can see the flowers better, and therefore find them more easily, which increases the efficiency of pollination by the insects.”

It says the method reduces insect mortality and increases pollination efficiency and photosynthetic growth, thereby improving the productivity of the plant cultivation.

 

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United States a joint patent applicant for new fresh produce wash

pomegranates_being_washed

 

A new antimicrobial wash for fresh fruit and vegetables that remains potent even when recycled is the subject of an international patent application by the United States of America jointly with the company Nature Seal.

An aqueous solution of hydrogen peroxide and one or more fruit acids, the wash is designed to reduce human pathogens, such as E.coli and salmonella, which are often culprits in food-borne illness.

According to the application recently published by the World Intellectual Property Organization, the best results are achieved if lactic acid is included in the wash.

The application also says it is essentially free of ingredients found in earlier antimicrobial compositions, such as peroxyacetic acid, surfactants, carboxylic acid esters and other solvents in addition to water. In particular, it is free of “alcohols, both monohydric and polyhydric, as well as other oxygenated organic solvents.”

Wash water can be recycled for multiple batches of fresh produce

Furthermore, it’s claimed the wash remains highly effective in reducing microbial contamination of wash water which is recycled for reuse with multiple batches of fresh fruits and vegetables.

Typically, antimicrobial washes are applied to fresh fruits and vegetables via methods such as direct spraying, misting, fogging, curtain coating and immersion, with the antimicrobial wash reused on many subsequent batches of produce, the application says.

While washing fresh produce with water alone is normally enough to remove pathogens from produce surfaces, problems can arise if the water is reused.

“This is because the microbes removed from fruit or vegetables remain in this wash water where they rapidly increase and then contaminate the second and subsequent fruit or vegetables treated with the same wash water. So, in order for an antimicrobial wash to be effective in such processes in terms of reducing microbial contamination of multiple batches of fresh fruit or vegetables, the antimicrobial wash needs to contain enough antimicrobial agents to reduce the microbial contamination of this wash water over time,” it says.

Read the application here.