The European Patent Office (EPO) has rejected a joint appeal filed by NGOs against a patent on barley owned by Carlsberg and Heineken (EP2373154). Barley plants grown without genetic engineering continue to be claimed as an "invention", as is the harvest and the beer made from it.
In the last years, Carlsberg and Heineken have systematically screened the genome of barley for relevant genetic variations that may have useful traits. These include, for example, randomly induced mutations that influence the process of brewing and the flavor of the beer after storage.
Carlsberg has already filed around a dozen similar patent applications, of which four have already been granted. Lawsuits are pending against three of them.
In April 2016 two patents were granted by the EPO for a mutated form of malting barley containing enzymes to develop more distinctive, flavor-stable beers. Beer produced from the new barley contains less dimethyl sulfide (DMS) that can give beer an undesirable cooked sweet corn taste. A third patent was granted in September 2016. It covers malting barley with a lower content of linoleic acid, allowing cooler temperatures during boiling of the wort to remove stale flavors. (inside.beer, 19.11.2016)
The problem in patenting plants arose from ambiguities concerning an EU directive from 1999 on biotechnological inventions that excluded essentially biological processes from patentability but did not provide for a clear exclusion for plants or animals obtained from such processes. In June 2016 the Administrative Council of the EPO took a decision to amend the relevant regulations in order to exclude plants and animals from patentability exclusively obtained by an essentially biological breeding process. (inside.beer, 7.6.2017)
Critics, like the alliance No Patents on Seeds! do not question the legality of patents that have arisen through deliberate changes in the genetic make-up. However, they oppose the fact that accidental mutations, whether they originate naturally or artificially, are recognized as patents. Only genetically modified crops (GMCs) whose DNA has been modified using genetic engineering methods should be applicable for a patent as accidental mutations lack the creative power, the alliance argues.
No Patents on Seeds! is especially concerned about serious negative impacts such patents can have, as these might also be granted on vegetables, fruits and other food plants.
“This is a bad day not only for breweries and barley breeders because a patent was upheld that should never have been granted. Patents like this are impacting diversity in agro-ecosystems, innovation in breeding and the interest of consumers”, says Christoph Then, spokesperson for No Patents on Seeds!. “Consequently, the EPO did not raise any bar against further similar patents. Now, there might be even more patents on beer and barley in the future.”
The case of a German barley breeder that was made public this week, shows how patents on seeds can hamper or completely block the development of new varieties. These negative impacts can also occur without any factual patent infringement. The reason: the technical and legal uncertainties associated with these patent applications incur substantial costs for laboratory analysis and patent lawyers that are too high a hurdle for many breeders.
Dr. Karl-Josef Müller, an organic breeder from Cultivari in Darzau, Germany, described his situation: “After more than twenty years work of breeding barley, and just before we wanted to register our new variety in 2020, we discovered that Carlsberg had filed a patent application on barley with similar characteristics. Consequently, we would have had to shoulder not only the costs of registering our new variety, but also the costs of sorting out totally unexpected legal questions. This is something we simply could not afford.”
Several gene variants (mutations) are described in the Carlsberg patent application. Cultivari does not know whether these mutations are also present in their own variety. But in this case, Cultivari was very lucky: the Carlsberg patent application (WO2019134962) in question appears to have been withdrawn at the beginning of 2021. Cultivari has, therefore, decided to now register its new variety.