As early as 2014, 32 organisations from 27 countries, including Public Eye, Swissaid, and Bionext, disputed “EP2140023” granted by the European Patent Office (EPO) a year earlier. This patent allows Syngenta to secure exclusive rights to peppers resistant to whiteflies. Since this natural insect resistance comes from a wild pepper plant species growing in Jamaica, this should not provide the basis for a patentable invention. Due to the grotesquely long duration of the proceedings, Syngenta has nevertheless benefited for almost ten years from the patent, which is valid in Switzerland, Spain, the Netherlands, Germany, and other European countries. This means that pepper breeders are not allowed to work with the natural resistance unless they acquire a license from Syngenta.

Paradoxically, this is still the case although current legislation would no longer allow the granting of such a patent. In 2020, the Enlarged Board of Appeal of the EPO responded to longstanding demands from NGOs, breeders’ associations and the European Parliament and clarified, in a decision of historical significance, that in principle, plants and animals from conventional, i.e., non-GMO breeding are not patentable. But for the Board of Appeal this only applies to patents filed after 1 July 2017. Absurd enough, this means that in the coming years, the EPO could approve around 300 pending patents that should not exist. Once granted, they remain valid for many years and can be used commercially.

It is mandatory that the Opposition Division of the EPO correct past shortcomings and finally revoke the patent after the public hearing*. Crossing resistance from one plant to another is not an ‘invention’ (i.e., the requirement based on which a patent is granted), but just daily business for breeders. Actually, the patenting of insect resistance from a wild Jamaican pepper plant is a case of biopiracy.

Patents on conventional crops hinder free access to seeds and thus, necessary innovations in plant breeding. They enable companies to exclude their competitors from the market and thus fuel market concentration. Despite the ground-breaking decision of the Enlarged Board of Appeal, the EPO is still granting such patents (also filed after 2017). Indeed, this is because cunning patent attorneys always manage to find new loopholes. Thus, a final and effective ban requires clear political guidelines from the member states of the European Patent Convention, including Switzerland.

*Any interested person may register, with the EPO by e-mail to follow online the hearing of 16 February held by videoconference (application number: 08749952.1).


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