A new ruling from the European Patent Office (EPO) means that plants and animals produced by “essentially biological processes" are no longer patentable.
This is a blow for agribusinesses and those producing genetically modified (GMO) fish, who can no longer apply for a European patent.
However, the ruling does not apply retroactively to patents granted before 1 July, 2017, or to pending patent applications filed before that date.
The 70-page opinion came from the Enlarged Board of Appeal, the highest judicial authority under the European Patent Convention (EPC), which met to discuss whether a previous interpretation from 2015 still held, following the introduction of new rules. The 2015 opinion was that animal and plant products exclusively obtained by essentially biological processes were not excluded from patentability under the EPC.
The result of the Enlarged Board of Appeal’s ruling is that both the production of plants or animals and the products produced by said processes, are non-patentable if they are exclusively obtained by means of an essentially biological process.
EPO President António Campinos said he welcomed the opinion of the Enlarged Board of Appeal.
"It will bring greater legal certainty for patent applicants, and the general public, on what is a sensitive and complex issue that has legal, societal and economic implications,” he said in a statement.
Maynard, Massachussets, U.S.A.-based AquaBounty, which has developed genetically modified AquAdvantage salmon, which the company plans to grow in land-based recirculating aquaculture systems (RAS), is currently the only company in the world producing GMO salmon. AquaBounty previously held a patent on its AquAdvantage Salmon, but it did not seek to renew when it expired in 2013. AquaBounty CEO Sylvia Wulf told SeafoodSource the EPO ruling will not immediately harm the company.
“The European Authority’s ban on patents on plants and animals will not affect our company, and we are not targeting the E.U. as a potential market in the near-term,” Wulf said. “However, our first commercial harvest of AquAdvantage Salmon is still on track for Q4 of this year and we are getting ready to harvest the first commercial batch of conventional Atlantic salmon at our Indiana farm later this month.”
The breakthrough follows the lifting of an import restriction in March 2019 by the Food and Drug Administration (FDA), which enabled AquaBounty to start raising its GMO salmon eggs in the U.S.A., effectively clearing the way for the country’s first GMO seafood to come to market.
Photo courtesy of Kosin Sukhum/Shutterstock
