Germany: EPO starts hearings in case against Heineken and Carlsberg

The European Patent Office (EPO) in Munich, Germany, will start hearings on Tuesday concerning three patents to Heineken and Carlsberg for regularly bred barley. About 40 environmental and activist groups had urged the two brewing groups to voluntarily relinquish three patents that were granted in 2016.  NGOs including Greenpeace, the Catholic charity Misereor, and globally networked small-scale farmers argued that the cultivation of plants and beer brewing stems from a centuries-old tradition and that patents should only be possible, if any, on genetically modified crops (GMCs) whose DNA has been modified using genetic engineering methods. (, 19.11.2016)

The problem 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 from patentability plants and animals exclusively obtained by an essentially biological breeding process. (, 7.6.2017)

As the EPO informed in June “proceedings in examination and opposition cases concerning plants or animals obtained by an essentially biological process have been stayed since last November following the Commission's Notice. These cases will now be gradually resumed and be examined according to the clarified practice.”

Three of those cases relate to the patents on malting barley that were jointly filed by Heineken and Carlsberg. 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.

Heineken and Carlsberg find themselves in a quandary. On the one side brewers in general do not want to use genetically modified barley in their beers as consumers are shunning these products, on the other side the regularly bred barley will most likely no longer be protected by patents.

The two brewing groups argue that the patents will not impede other brewers since there are currently more than 50 malting barley varieties available in Europe of which only three are protected by patents.

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