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Broccoli patent revoked

Monsanto's broccoli patent has been revoked by the European patent office. The revocation is in line with Directive 98/44/EG of the European Parliament and of the council on the legal protection of biotechnological inventions.

The opposition division of the European Patent Office (EPO) has decided on 30-10-2018 to revoke the patent EP 1 597 965 B1 - "Broccoli type adapted for ease of harvest".

A basis for the decision of the opposition division is Rule 28(2) EPC as entered into force on 1 July 2017. Rule 28(2) states that "European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.". The modification of Rule 28(2) EPC was implemented after the European Commission in the "Commission Notice on certain articles of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions" essentially rolled back previous decisions of the Enlarged Board of Appeal of the EPO to uphold the broccoli and tomato patents (Enlarged Board of Appeal decisions G 2/12 (tomatoes ii) and G 2/13 (broccoli ii)).

The opposition division has judged that the plants described in the patent of Seminis Vegetable Seeds Inc. (subsidiary of Monsanto), among others based on the methodological descriptions in the patent, were obtained exclusively via the essentially biological processes of crossing and selection.

The Patent has been revoked under Article 101(3)(b) EPC. Seminis Vegetable Seeds Inc. may appeal to this decision of the opposition division.


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