The Council of Ministers of the EU is expected shortly to adopt Council conclusions welcoming the Commission notice on certain Articles in Directive 98/44/EC on the legal protection of biotechnological inventions (see EUROPE 11678).
The Commission takes the view that recent decisions by the European Patent office (EPO) granting a number of patents (tomatoes and broccoli) run counter to “the EU legislator’s intention”. The Commission, which nonetheless refuses to re-open discussions on Directive 98/44/EC, believes that products created by essentially biological processes should not be allowed to be patented, and this position is shared by the farmers’ and agri-cooperative organisations in the EU, Copa and Cogeca.
The text of the Council conclusions, which has still to be approved by the member states’ ambassadors to the EU, Coreper, welcomes the Commission’s notice on the protection of biotechnological inventions, “without prejudice to potential future rulings of the Court of Justice of the European Union”. The Council says that the notice increases clarity in this field within the EU and contributes to restoring an appropriate balance between patent-related rights and plant variety rights. The legislator’s intention when adopting Directive 98/44/EC was to exclude from patentability products obtained through essentially biological processes, the Council states.
In the conclusions, the Commission is called on to further analyse, with regard to conditions for compulsory cross-licensing, issues related to significant technical progress of considerable economic value for the plant variety or invention and also to further analyse issues related to the scope of protection of patents, as such analyses could be helpful in the development of new varieties based on existing patented genes.
The Commission is asked in the conclusions to present a report in 2017 on the development and implications of patent law in the field of biotechnology and genetic engineering, “so as to address remaining issues identified by the expert group and that may need to be clarified in order to increase certainty in this field”. The Council also urges member states, in their capacity as members of the EPO, to argue that EPO practice be aligned with these conclusions. (Original version in French by Lionel Changeur)