European Patent Office partly upholds two controversial barley patents
The European Patent Office (EPO) in early October 2018 has upheld two patents on three brewing barleys, granted to both Heineken and Carlsberg in 2016, but they will be reduced in scope. As an EPO spokesperson told media, there is no longer the possibility of patenting features that are “of natural origin”. Therefore, there is now a “limited scope of protection”. However, the spokesperson was unable to explain exactly what is restricted by the patent.
Over 30 NGOs and a host of privately-owned Austrian brewers had lodged complaints with the EPO against the patents, arguing that they have in fact been granted for a natural mutation, induced by chemical stimuli, as they occur in conventional breeding.
According to NGOs, two of the three granted patents are based on random mutations in the genetic material of the barleys (EP2384110 and EP2373154), which makes them particularly suitable for brewing beer. For the third patent (EP2575433) the first two patented barleys were combined by further breeding to produce the desired characteristics, which will make brewing more cost effective.
Each of the patents covers the plants, their harvest, the brewing process, products such as malt and seasoning, and any drinks produced this way.
A date for a hearing of the third patent has not been scheduled yet.
The EPO’s practice of patenting conventionally bred plants and organisms has been met with criticism for years. Unlike genetically modified plants, patents on plants and animals, which are derived from essentially biological processes, ie conventional breeding, are prohibited. However, the EPO came to a different conclusion and decided in 2015 in the so-called “broccoli-ruling” that patents on conventionally bred plants and animals can be granted, even though the breeding procedures as such cannot be protected by a patent.
Due to continued criticism from the EU and NGOs, in June 2017 the EPO’s Management Board revised its rules and stated that plants and organisms derived from conventional breeding cannot be patented. Even then, NGOs warned against loopholes. According to the new regulation, plants and organisms are still eligible for a patent that show certain genetic predispositions and random mutations that are important for breeding.
