John Ogier, Aylsa Williams, Joel Smith, Penny Maplestone

The IPAN meeting on 11 January focused on recent developments in IP for plant science and plant breeding.

Plant breeding is a research intensive, expensive and highly IP dependent business. European plant breeders have traditionally favoured Plant Variety Rights (PVR), the bespoke global system for protecting plant varieties. But the speed at which plant breeding technology is developing and the levels of investment that are now needed to be competitive have led the breeding industry to explore patents and other types of IP to seek stronger protection over their material than PVR is able to offer. This also allows them to generate additional income streams from licensing. The new IP position is evolving within an increasingly complex and legally uncertain regulatory and policy environment.

The first speaker, Joel Smith, a Partner in the IP Group at Herbert Smith Freehills LLP, London specialising in IP law and commercial IP, gave an overview of the legal challenges ahead for protecting innovation in plant breeding. He explored the short term implications of Brexit for plant breeders seeking to ensure continued effective protection for varieties in the UK and EU markets along with the prospects for future free trade arrangements with the EU.  These included rules on parallel imports, exhaustion of rights, technology licences, UK relationships with EU regulatory bodies, the future of the UPC, and the need for products to continue to meet EU marketing standards for export. These short term local challenges also had to be viewed in the context of global issues such as compliance with international biodiversity treaties and the access and benefit sharing arrangements contained therein. Scientifically this was a very exciting time to be involved in plant breeding but legal uncertainty in IP and regulation risked delaying or even preventing the full realisation of the technological potential.

Aylsa Williams, a European patent attorney and partner at D Young & Co working in biotechnology and related areas then talked to IPAN members about her personal experience in Plant Bioscience’s landmark cases G2/07 and G2/13 before the Enlarged Board of Appeal  of the EPO. The cases related to broccoli having elevated levels of certain antioxidant chemicals, shown to offer protection against cancer. Alysa told the story of the chain of events from first filing with the EPO in 1999 through a prolonged series of challenges and EPO decisions to the current day. Every step of the way difficult decisions had to be taken by the applicants to spend more money and time on this patent; the driving force was not in the end to secure a viable patent but to try to achieve legal certainty. The case has led to fundamental challenges to the texts of the Biotech Patent Directive and European Patent Convention and there are still currently unanswered questions about the patentability of the products of essentially biological processes. Legal uncertainty in this space for plant breeders continues and at the time of writing EPO consideration of patents in this area is stayed. In an unprecedented move, the EU Commission and the EPO have taken opposing views and companies are watching anxiously to see how this will be resolved.

The meeting was chaired by John Ogier (IPAN Chair) and the speakers were introduced by Penny Maplestone (IPAN director and Chief Executive of the British Society of Plant Breeders).

After a lively Q&A session, the meeting ended with informal discussions and networking over a drink and nibbles.