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10 July 2018AmericasDaniel Eduardo López and Esteban Rodríguez

Plant patents in Mexico: uncertainty ahead

The world population is expected to reach 9.8 billion by 2050. If the current rate of food production remains the same, the demand for food will likely outpace it. Fortunately, this concern has driven efforts to find a solution to this scenario through plant-related inventions.

Plant breeding techniques have been applied in order to produce crops with improved agronomic features, resistance to diseases, plagues and pests, or tolerance to heat and drought. Thus, the paramount importance of plant-related inventions is undeniable.

According to the TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology. However, the same treaty says that essentially biological processes for the production of plants as well as plant varieties can be excluded from patentability.

In this context, it is widely agreed that transgenic plant inventions are clearly patentable as they are not obtained by essentially biological processes, but rather by applying recombinant DNA techniques.

In accordance with the drafting of article 27.3(b) from TRIPS, the products of such essentially biological processes are not necessarily non-eligible for protection.

Decisions

In this regard, in decisions G 2/12 and G 2/13 from the European Patent Office’s (EPO’s) Enlarged Board of Appeal in 2015, the board ruled that the exclusion of essentially biological processes for the production of plants shall be construed narrowly. Furthermore, the board found that patent claims directed to plants or plant products are patentable even if produced through essentially biological methods, provided that the invention is not confined to a particular plant variety.

Later, in 2016, the European Commission issued a notice stating that the exclusion to patentability should be extended to the products obtained by essentially biological processes. While the notice was not legally binding on the EPO, the prosecution of all affected cases was stayed until further clarification. Finally, on July 1, 2017, the EPO decided to amend the EPC Regulation in order to follow the Commission’s recommendation.

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