Patent Protection for Plants: a Comparison of American and European Approaches

Abstract

From the initial establishment of patent acts in the United States and in Europe, experts have questioned whether or not plants can enjoy patent protection. For various reasons, it has generally been felt that the patent system was an inappropriate method of protecting new plants. Consequently, special plant-tailored protection systems were created. With the enactment of these protection systems, the debate on patent protection for plants under the general patent act (called the Utility Patent Act or in the United States) seemed to end, until the call for patent protection for plants was raised again at the end of the 1970s. In the United States, the renewed debate was settled once and for all in 1985 in favor of UPA patent protection for plants. In Europe, the debate temporarily ceased in 1983, but resumed in 1995, when the Technical Boards of Appeal of the European Patent Office (EPO) decided to stop granting patents for plants. The Directive 98/44/EC of the European Parliament and of the Council of July 6, 1998 on the Legal Protection of Biotechnological inventions did not, for various reasons, put an end to this revived debate. This article argues that the ongoing uncertainty and ambiguity as to patentability in Europe can only be settled by parting from a semantic approach - i.e., by no longer arguing about the exact meaning and scope of the phrase plant variety in Article 53(b) of the European Patent Convention (EPC) - and by looking instead to intrinsic arguments to justify the patentability of plants.To this end, I evaluate the objections which have been raised over the past one hundred years to deny plants patent protection in the light of recent technological developments, to see if and to what extent these objections still apply to plants obtained by modern transformation techniques. I conclude by suggesting that these various historical patentability objections are no longer valid with regard to biotechnological inventions, and that a number of patent- law objections also no longer apply to plants obtained by conventional breeding. Finally, in the interest of realigning itself with current U.S. patent policy, the European Patent Office should follow this analysis and take appropriate steps to abolish Article 53(b) of the EPC.

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