PLEASE HELP- [No more patents ]THE WRINKLED TOMATO CASE

Dear Supporter,

You opposed to the patent on conventional broccoli because of its negative affects on farmers, plant breeders and researchers. Therefore we are thankful and would like to ask again for your support:
The European Patent Office (EPO) is going to take the landmark decision not only based on the conventional bred broccoli, but on a patent of conventional tomato (EP 1211926) as well. Here the question is if patents on conventional plants and on “essentially biological process” offend against the exclusion of patents as contemplated under article 53 of the European Patent Convention (EPC).
The production of and the trade with tomatoes is especially for farmers in developing countries like Mexico , Morocco , Niger and Tunisia an important income source. The patent on conventional tomatoes threatens long-time trade connections to Europe . The access to tomato seeds could worsen as well in Developing countries like Ghana , a country where 60% of the people are working in the agriculture.
We have composed background information about the patent and its consequences, which you can find on the website of No Patents on Seeds:
http://www.no-patents-on-seeds.org/index.php?option=com_content&...〈=en
Now we would like to ask you, to send a letter to the European Patent Office (EPO). You will find a draft letter below. Such third party observations may be sent until the end of October 2008.


Coalition Against Patents on Conventional Seeds

PROPOSED LETTER TO THE EPO

To the

Enlarged Board of Appeal at the European Patent Office

80298 München Germany

Re: Case 01/08 ("wrinkled tomato"), EP 1211926

Dear Members of the Enlarged Board of Appeal

I am very concerned about the types of patents recently granted at the European Patent Office. In the case of EP 1211926 several regulations of the European Patent Convention (EPC) were violated. Above all the patent is in complete contradiction with EPC Art 53 b and the prohibition of patents on "essentially biological processes for the production of plants and animals".

Moreover the patent opens the road down to biopiracy, since the patent claims any wild species of tomatoes which are crossed with the aim of getting tomato fruits with less water concentration. The most relevant subspecies Lycopersicon hirsutum originates in southern Ecuador to central Peru and is known to be resistant against several pests. This subspecies might be largely monopolised by the way the patent is phrased.

The Enlarged Board of Appeal should also be aware of the emerging crises in world food hunger. Patents like the ones discussed in G2/07 and G1/08 are covering the whole chain of production and are likely to raise higher prices in international markets, which could add additional bottlenecks in food supply, especially for developing countries. Against this background, all exclusions in patent law that deal with seed and plant production should not be interpreted narrowly, but in parallel with the exceptions to Article 53c (dealing with methods of therapy and diagnosis) to make sure that access to basic resources of daily life can not be blocked by patent monopolies.

From a legal point it is obvious that the patent holder is in a desperate situation since the patent simply follows the most common ways of plant breeding of crossing and selecting. For example there is no true technical barrier between the subspecies to be crossed with each other nor is it an unusual technical feature to select plants for their phenotypical characteristics such as a wrinkling and dehydration. The essence of the patent is nothing else but crossing and selection and the result of the patented process is nothing else but a plant variety as defined by G1/98 and EPC Rule 26 (4). Therefore the patent claims exactly what is excluded by EPC Article 53b.

Since it has been broadly discussed how EPC Rule 26 (5) can be interpreted in this context, the Enlarged Board of Appeal should bear in mind that in 1998 the European Parliament already adopted a more or less clear definition of "essentially biological processes for the production of plants and animals". The original definition adopted by second reading was: “A procedure for the breeding of plants and animals shall be defined as essentially biological if it is based on crossing and selection.” This should be decisive for the interpretation of the current rules and regulations, since this definition was adopted by the most relevant body of European legislation. This means the patents as discussed under G2/07 and G1/08 are simply not in accordance with European patent law.

Further, from a more general point of view it is not acceptable to define technical procedures such as use of gene markers or the observation of phenotypical characteristics as fulfilling the criteria for production of plant and animals. These processes might be applied to plants and animals but are in no way processes to produce plants, seeds or animals. If this important distinction gets lost it would lead to a situation in which any (inventive) minor technical input applied on plants on animals could turn them into a product with the result that even all following generations would also be covered by the patent (see EU Directive 98/44, Art 8, 2). This would turn patent law into an instrument of unjustified appropriation of basic resources of food, plant and animal production. Patent law and its interpretation have to find a true balance between the interests of civil society or they will lose their very basic justification.

In the light of these arguments it should be possible to find a way to decide the questions forwarded to the Enlarged Board of Appeal. Patents on “essentially biological processes for the production of plants and animals” can not be granted in Europe. Both the patents currently discussed (G2/07 and G1/08) can not escape this exclusion from patentability and therefore can not be upheld.

Yours.....