The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Wednesday, 27 August 2014

"Cultivated capsicums!" Peppers resist insect, breeders resist patent

This Kat has received information concerning the publication in a national Dutch newspaper of a double page item calling for crowd-funding of opposition proceedings against a European patent.  The patent in question, granted last year to Syngenta, relates to EP2140023 relating to insect-repellent pepper plants.  Or, to put it another way:

The Bemisia in question is none other than the whitefly, of which there are several varieties (the rather handsome Silverleaf whitefly is shown on the left: don't worry -- the real ones are a lot smaller than this).  What's good news for pepper-lovers is bad news for ladybirds, praying mantises and lacewings, which don't eat pepper in any shape or form but do enjoy tucking in to a juicy whitefly when the opportunity arises.  Too small to eat whiteflies, the Amblyseius swirskii mite (for it is he, or possibly she) will happily go to work on a whitefly egg, though it is not recorded whether this delicacy is preferred when scrambled, lightly boiled or poached. Merpel adds: Bemisia is quite unrelated to another Silverleaf, much respected in IP circles ...

EP2140023 has generated a good deal of interest, not to mention controversy; it has even been the subject of a question before the European Parliament which recites that 34 non-governmental organisations (NGOs) and farmers' and breeders' bodies are united in their opposition to it. So it is not surprising that Bionext (a Dutch organisation of organic farmers and food-growers) should be campaigning against it in the following terms:

Thanks to Google Translate, this Kat can bring you the following information (which you can read in the original Dutch here) about Bionext and its objection to EP 2140023:
BIONEXT is the organization for organic food and farming in the Netherlands. Within BIONEXT working farmers, growers, trade and processing and retailers together to promote organically in the Netherlands and more sustainable. 
BIONEXT is the organization behind Adopt a Chicken, Adopt an Apple Tree and consumer magazine Taste Making. ... 
With the campaign "Heart for biodiversity, no patents on life" asks BIONEXT attention to the trend that more and more natural properties of plants and animals to be patented. EP 2140023 B1 patent is central to the campaign. This patent has been granted by the European Patent Office (EPO) on May 8, 2013. With the patent Syngenta receives ownership over all paprika (and pepper) seeds, plants and -fruits who have a natural defense against whitefly. The patented pepper plants have been developed by a cross between a commercial sweet pepper with a wild pepper the desired property already owned. The insect resistance is derived from Mother Nature through the gene bank freely accessible to every grower and breeder. 
With patents on features of classically bred plants companies such as Syngenta their dominance in the global seed trade. Strengthen Breeders do not have freedom of access to the basic material of plant breeding: plant varieties and wild plants. 
The withdrawal of the pepper-patent would be an important first step in stopping patent classic bred plants. But for a structural solution is a modification of the European Patent legislation is necessary.
Not having a scientific background, this Kat is not in a position to judge whether the patent should have been granted or not. However, it seems to him that there may be something of an oversimplification. Whatever one may think about EPO examiners, they can usually be relied on to spot a piece of killer prior art, such as an insect-repellant wild pepper which is so blatant that NGOs and organic breeders' groups can see it too. And if the patent's claims seek to cover products and processes that already exist in nature, those claims won't be able to prevent anything being done with or to those products that wasn't already available for them to do before the patent was granted. On the other hand, the existence of some respected and rational organisations in the list of those opposing the patent suggests that -- unless they have been afflicted with some collective illusion -- there may be some firm ground upon which their concerns are based.

So can readers of this weblog clarify the position: 
(i) what exactly is the invention? (ii) how does it stand in relation to the prior art? (iii) do the claims cover things that already exist and can be made or done?(iv) is there (a) no problem at all, (b) a problem that the existing law can and will be expected to cope with or (c) a problem calling for legislative reform?
Pig and pepper here
Peppa pig here


Anonymous said...

Sorry! I lost concentration and couldn't continue after getting to the "adopt a chicken" part.

Anonymous said...

Some resemblance to Monsanto?

Anonymous said...

You are giving way too much credit to the EPO examiners for actually doing their job.

[I am not an anti-patent person, so this isn't a comment from a member of the opposition squad.]

athurgood said...

From a quick reading of the claim posted in the article, it seems that the plant is defined by the means (pairs of PCR primers) by which the detection of a marker locus on chromosome 3 of the plant, which marker locus is sufficiently close to the desired quantitative trait locus aka QTL (which isn't specifically identified in the claim) and cosegregated into a resultant hybrid genome of the plant after hybridisation of respective genomes can be detected.

In other words, the plant appears to be defined by the method in which the desired trait can be considered to be present or absent in the plant due to the presence of the marker locus on chromosome 3.

A practical application of this, other than having plants as defined, would be the use of PCR screening to detect, in plant DNA, whether or not the desired trait is present in any given plant.

Anonymous said...

Documents in the case are here

athurgood said...

It would appear to cover any cultivated Capsicum annuum plant which is intermediately resistant to Bemisia having the QTL (which might be one or more genetic loci leading to the display of the resistance trait in the plant) and in which the required marker locus can be detected via the primer or pairs of primers.

No idea how this stands in relation to the prior art, but it is conceivable that a naturally occurring wild-type plant where the marker is present and displaying the required traits falls within the claim.

The question remains whether the claim to a product is defined in accordance with the EPC, caselaw, examination practice, etc. It could be argued that the claim to the product is defined by the result to be obtained. It could also be argued that the product claim can not be defined in any other way than indirectly, although one might question that as a strategy for attempting to cover both existing wild-type plants and any other hybrid or plant in which the genomes have been directly manipulated. All nice topics for debate at the EPO and/or in national courts.

athurgood said...

The potential conflict between PBRs and patents raises its head once again - sounds like a case of Broccoli and Tomato soup, bis repetita.

Anonymous said...

Where do the chickens come into this?

Anonymous said...

Stuffed with the peppers, no doubt

Anonymous said...

The chickens are adopted by BIONEXT, under its Adopt a Chicken campaign. They are presumably orphan works.

Anonymous said...

To adopt a chicken, visit this site. It seems your "biological chicken" (as opposed to... what?) stays with the "biological farmer" (who remains the owner), but you do get a voucher that can be traded in for "biological eggs" at associated shops.

Anonymous said...

I think it's disgraceful that Syngenta have been allowed to have an everlasting monopoly on chickens. Bring on the revolution with Colonel Saunders leading the charge.

Anonymous said...

KFC should not be supported as they are terrorist organization. Or is a football club? Whatever, they are all the same.

Is pepper and whitefly the secret recipe?

Anonymous said...

I thought we weren't allowed language like "at least two ... more particularly at least three ... more particularly at least four ..." in a claim like that. Certainly all those "more particularly" clauses are entirely non-limiting and might even be said to cause a lack of clarity and/or conciseness under Article 84 EPC.

Indeed, I note from the Form 2300 that Dr Dolder (representative for the opponents) has identified Article 84 has a further ground of opposition. Shame that it's not a valid ground under Article 100 EPC.

Anonymous said...

EPO Guidelines:

Optional features
Expressions like "preferably", "for example", "such as" or "more particularly" should be looked at carefully to ensure that they do not introduce ambiguity. Expressions of this kind have no limiting effect on the scope of a claim; that is to say, the feature following any such expression is to be regarded as entirely optional.

Nicolet Jean Louis (one of the patent authors) said...

What is always forgotten when it is talked about patent is the benefit of it. Filing a patent is disclosing to the scientific community all informations about the discovery. The scientists can built on this knowledge, and add their contribution. Competitors can use the data to create commercial products in a smarter way - by paying some royalties.

The second point is that the patent is time - limited , 17 - 20 years. But for people of the seed business, it is easy to count how long is the efficient protection. After the date of application, considering the time to develop the riht version of the gene, to develop a commercial product for the patent owner, then for competitors to develop their commercial alternative. Not so much time is left for efficient protection.

Another point that I want to mention, I have seen the seed company being accused of appropriating a wild source of insect resistance. It is not correct, everyone can use this variety freely. The patent owner is only protecting an information on a specific area of the genome for a limited period of time. Information that would not be known without the patent application.

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