[REPONSE] Parlement européen, question écrite à la Commission N°E-004527/2020 du 10 août 2020 de Rosa D’Amato (NI) – Brevetabilité des raisins (Réponse le 14 octobre 2020)

Niveau juridique : Union européenne

Texte de la question :

« It is enshrined in Directive 98/44/EC that plant and animal varieties, including parts and characteristics thereof, and essentially biological processes and products obtained by means of such processes cannot be patented.

The European Patent Office, by way of Opinion G3/19 adopted by its Grand Board of Appeal on 14 May 2020, has abandoned its previous position and established that plants obtained exclusively from essentially biological processes cannot be patented (1) .

Disputes have arisen in Apulia between farmers and the patent holders of seedless grape varieties (2) .

Breeders are switching from granting patent concession contracts to trademark concession contracts, but despite this change there are still disagreements between patent holders and farmers, who are the ones losing out financially (3) .

Can the Commission therefore state:

1. What action is will take at EU level, in conjunction with the Member States, to reduce this financial imbalance for farmers, who are unable to produce patented varieties without a licence;

2. What steps it will take vis-à third countries to ensure that essentially biological processes and products obtained from them are not deemed patentable; and

3. whether the reports provided for in Article 16 of Directive 98/44/EC have been published and can be easily consulted.

(1) www.uvadatavola.com/focus1/4725-le-piante-non-sono-brevettabili-la-discussione-%C3%A8-chiusa.html

(2) www.lagazzettadelmezzogiorno.it/news/home/1202158/l-uva-pugliese-ricattata-dai-padroni-dei-brevetti.html

(3) www.uvadatavola.com/focus1/4730-snfl-interviene-in-italia-contro-i-coltivatori-illegali-di-uve-brevettate.html


Réponse donnée par Mr Breton, au nom de la Commission européenne, le 14 octobre 2020 :

« The Commission confirms that both the Directive 98/44/EC (Biotech Directive)(1) and the European Patent Convention (EPC)(2) exclude plant varieties as such from patentability. Plants obtained through essentially biological processes are also excluded from patentability under these legislations. In relation to the EPC, this was recently confirmed in the opinion G 3/19 of the Enlarged Board of Appeal of the European Patent Office. These exclusions apply irrespective of the origin of the plants in question, meaning that they cannot be patented in Europe, even if they were developed in a third country. The Commission notes that plant varieties may be protected by a different intellectual property right, granted for new plant varieties either at EU level (under Council Regulation 2100/943)(3), or under national laws of the EU Member States. Protected plant varieties cannot be produced and reproduced, without authorisation of the right holder, for the purposes of propagation, sale, marketing, imports and exports to the EU and stocking. Trademark protection is also available for products like grapes, provided that the trademarks do not consist of the denomination of a registered variety or reproduce it in their essential elements. The limited information available appears to suggest that the disputes in question relate to protected varieties and related trademarks. TheCommission understands that proceedings are ongoing before the national authorities in Italy on their licensing conditions. The Commission cannot comment on these proceedings.The Commission has issued or facilitated several publications on the application of the Biotech Directive, including two reports under Article 16c(4), an Expert Group report(5) and an interpretative Notice(6). »

(1) eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A31998L0044

(2) www.epo.org/law-practice/legal-texts/html/epc/2016/e/ma1.html

(3) eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31994R2100

(4) COM(2002) 545 final, available at ec.europa.eu/transparency/regdoc/rep/1/2002/EN/1-2002-545-EN-F1-1.Pdf and COM(2005) 312 final eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0312:FIN:EN:PDF

(5) ec.europa.eu/DocsRoom/documents/18604/attachments/1/translations/

(6) Commission Notice 2016/C 411/03, available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016XC1108(01)&from=DE


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