YEAR 2019 N.º 2

ISSN 2182-9845

Plant Patents in the European Union: Recent Developments

Mª Mercedes Curto Polo


Breeders’ rights; Plant Patents; Biotechnological inventions; plant varieties; agricultural innovation.


Biotechnology has become one of the most promising and important technologies for the development of innovation in agriculture. The economic importance of the invested resources justifies that innovators ask for an adequate means of protection to compensate their efforts. There are two possible ways of protecting developments related to agricultural innovation: A sui generis protection system born around the middle of the last century to protect the results of traditional agricultural innovation procedures, which is poorly adapted to innovations achieved through application of biotechnology; and the patent protection of the results of biotechnological procedures that operate at the cellular level of the plant. The coexistence of both protection systems in the European Union gives rise to some controversies that must be solved not only by the legislator, but also by the courts and patent offices when they apply existing law to a reality in constant evolution.

Table of contents

1. Introduction
2. The patentability of biotechnological inventions
2.1. Preliminary remarks
2.2. Patentable subject-matter. The concept of invention
3. The patentability of plant innovations
3.1. Non-patentability of plant varieties per se
a) The concept of plant variety
b) The exclusion of plant varieties from patentability in European Patent Law 3.2. Non-patentability of essentially biological processes
4. Conclusions