Patenting vegetable breeding: protection for the shriveled tomato

Even conventionally bred tomatoes and broccoli can be protected by a patent. This was decided by the European Patent Office.

A normal tomato, but still in great demand by the patent lobby. Photo: dpa

A "shrivelled tomato" produced by conventional breeding may be protected by patent. This was decided by the European Patent Office on Tuesday. For years, the authority has been dealing with the vegetable, which is "raisin-like and dehydrated," has a skin that does not burst when it shrivels on the vine, supposedly making it particularly suitable for making ketchup. Nothing now stands in the way of a European patent on tomatoes with these special properties. The application was submitted by the Israeli Ministry of Agriculture.

The case of the tomato had caused a sensation, together with that of a supposedly particularly healthy and cancer-protecting broccoli. The cabbage, named Beneforte, which can already be bought in British supermarkets, had been positively decided by the Technical Board of Appeal of the Patent Office a few weeks ago. Both plants were developed through conventional breeding and not through genetic modification. They should therefore be protected by plant variety rights and not by patent law.

Nevertheless, the European Patent Office considers itself responsible. The European Patent Convention prohibits the patenting of breeding processes. However, products with special properties could certainly be protected by patents, the Office’s Enlarged Board of Appeal ruled in March of this year. Around 290 applications for conventionally bred crops are currently pending and will now be decided in the next few years. So the tomato and broccoli will be followed by other vegetables.

Critics accuse the authority of interpreting its legal basis too generously. "The agency’s case law has eroded existing bans to such an extent that they are now ineffective," says Christoph Then, a patent expert for Greenpeace and coordinator of the "No Patents on Seeds" alliance.

Patent lobby dominates expert group

After the landmark decision in March, the responsible Federal Ministry of Justice had announced a "review." Now a spokesman for Justice Minister Heiko Maas (SPD) says that they are "in talks with the ministries responsible for patent law in the other EU member states as well as with the European Commission in order to explore scope for action."

The Commission also sees a need for action, but wants to wait for the report of a group of experts, which is expected at the end of the year, before making a decision. Critic Then is one of the 15 experts. Although this group is strongly dominated by the interests of the patent lobby, he says, the government of the Netherlands will hold the EU Council presidency next year. And it wants to take action against patents on life within that framework, he says. "So I hope that something will happen in this matter after all."