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Monday, 27 February 2012

What lovely melons – and the EPO wants you to know about them

The EPO from time to time posts on its website news articles about interesting patents that it is currently handling, usually because they are under opposition. The so-called “broccoli” and “tomato” patents, that were the subject of Enlarged Board of Appeal decisions G 2/07 and G 1/08 respectively, were each the subject of press releases announcing subsequent procedural steps (for example here about Oral Proceedings on the "tomato" patent , here and here about cancellation of Oral Proceedings for the "broccoli" patent, and here for a blog from the EPO President).
Continuing the fruity theme, the EPO is now kindly keeping us updated about the “melon” patent EP1962578 belonging to Monsanto.  This case has not graced the elevated halls of the Enlarged Boards of Appeal.  In fact, it has only just been opposed (by Nunhems B.V. and a consortium acting under the heading “No patents on seeds”). The EPO’s press release says there have been many enquiries about this case.  Accordingly, it has prepared a set of FAQ, housed on the EPO website under “Patenting Issues” – rubbing shoulders with the likes of the Unitary Patent, International Year of Chemistry, Machine Translation, and Patent Quality.

The FAQ tell us nicely about the patent: 

The patent relates to melon plants resistant to a virus - cucurbit yellow stunting disorder virus (CYSDV) - that attacks melons, turning them yellow and reducing fruit yield. The plants are made resistant by the introduction of a gene from another melon plant by way of a conventional breeding method involving the use of a genetic marker ("marker-assisted breeding"). The gene which is responsible for the resistance was first found in a melon plant in India and catalogued in 1961. It has been publicly available since 1966. 
The patent covers the modified plant, parts of the plant and its fruits and seeds, but not the breeding process for obtaining the plant. 
The patent application was filed with the EPO on 21 December 2006 and the grant of the patent became effective on 4 May 2011. The patent is owned by Monsanto Invest B.V.
The FAQ then move to more general topics:
What is the legal basis for granting European patents?What does "opposition" mean?Why was the "melon patent" opposed, and by whom?Is it possible to grant patents on plants?And then to the most extensive section – How many patents has the EPO granted in the area of plants?

The IPKat found the last section an interesting read about the statistics of European patents in this field.  Apparently, 
of the 13 848 patent applications relating to plants published by the EPO since 1990, 1 690 ended with the grant of a European patent. Of these, only 88 are patents for non-GM plants, while 1 602 relate to genetically modified plants
Merpel thinks that the EPO adopts a rather defensive tone in the FAQ, and wonders why.  She also wonders why this patent has aroused such interest in the EPO press office at this rather early stage. 

The IPKat is musing on another aspect of the timing of the press release – just after the expiry of the opposition period.  Would it have been permissible for the EPO to announce the patent just before the end of the opposition period, possibly bringing it to the attention of someone who would otherwise be unaware of its existence, and thereby prompting them to oppose it?  Readers thoughts and comments are welcomed.


twr57 said...

Merpel, it's not surprising that the IPO are rather defensive. They're based in Germany. The German Parliament has just (9 February) passed a motion expressing concern about the patenting of plants produced by conventional breeding methods (for unofficial translation see ). "Cet animal est très méchant...".

Anonymous said...

For 'IPO' read 'EPO', we suggest.

Anonymous said...

"Would it have been permissible for the EPO to announce the patent just before the end of the opposition period,..."

Do you really believe that a patent grant should be kept secret until the opposition period has expired?

Anonymous said...

Anon@6.52, apply Hoffmann principles. 'Announce' here means 'publicise' rather than 'publish'.

Anonymous said...

"Would it have been permissible for the EPO to announce the patent just before the end of the opposition period" was a poor choice of words. The Kat should have written : "Would it have been permissible for the EPO to announce the expiry of the opposition period just before the limit date for filing oppositions ?"

"This case has not graced the elevated halls of the Enlarged Boards of Appeal." For good reason: no appealable decision (refusal, revocation) has been issued yet by the first instance. Patience my friends.

Anyway the grounds for opposition do not seem to have anything to do with Article 53 (exclusion from patentability) thus that case is unlikely to rock anybody's world.

Francesca said...

If the gene responsible for the resistance it not new (amounting to a discovery and not to an invention), on which basis is the patent grounded?


Darren Smyth said...

With permission, I add this comment received by e-mail:
"In an age where expanding populations and hunger can be a major problem along with the decline of the family farm, NO PLANT SHOULD BE PATENTED. This has more to do with Natures work than man's, even in the case of GMOs. In particular Monsanto's non reproducing seeds are an abomination."

Anonymous said...

in response to the previous comment:

"In an age where expanding populations and hunger can be a major problem along with the decline of the family farm, further research on new PLANTs SHOULD BE encouraged and in return be allowed to be PATENTED. This has everything more to do with man's work and nothing to do with nature, especially in the case of GMOs. In particular Monsanto's developments are a great advance and benefit to mankind."

The previous comment is most likely written by someone with plenty of food on their plate and lives in a country where many are starving. I know a few commentators who could have written such a statement and they have a well-filled out belly.

twr57 said...

Francesca, I'm sorry to see you crediting the common but mistaken belief that discoveries aren't patentable, I suppose on the flimsy ground that this is what Article 52 EPC says. (The US Act says the opposite, almost equally misleadingly). It's only mere discoveries that aren't patentable. If your discovery leads you to produce a new and previously unobvious process or thing, you can (typically) patent that. It is then no valid objection to say that it is unpatentable because it is based on a discovery.

Anonymous said...

twr57 needs to re-read Francesca's post and see she has asked a reasonable question, for which there is of course an answer that twr57 may now wish to provide?

Anonymous said...


as most things circulated by e-mail, that comment is, well, wrong on several points.

For example: "In particular Monsanto's non reproducing seeds are an abomination."

In fact, no such "suicide seeds" have ever been commercialised, and Monsanto in particular pledged already 13 years ago not to commercialise them.

One of the reasons, if not the main reason, why Monsanto pledged that is that they considered that their GM seeds could be protected legally through patents, rather than such "genetic use restriction technology".

Apart from that, writing "NO PLANT SHOULD BE PATENTED" in ALL CAPS does not make an argument. The question is: why? Why do you believe that patenting genetically modified plants obtained after much research and laboratory work would be negative to food production and/or family farms? Just asserting "This has more to do with Natures work than man's, even in the case of GMOs." All technology is about using the laws of nature for our own purposes. Should patents in the mechanical field be rejected if they involve, for instance, gravity?

Anonymous said...

Anonymous@8:20, I'm afraid it is rather you who didn't understand twr57's answer. Francesca asked how a gene found in nature could be patented. The answer, of course, is that it isn't the gene as found in nature (a discovery) which was patented, but rather its use (an invention) in a presumably new and inventive manner. This is the difference between science (the study of nature) and technology (the application of scientific discoveries for useful purposes). You can't patent science, but you can certainly patent technology.

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