Biopatent on malting barley: appeal dismissed

The European Patent Office (EPO) has rejected an appeal against a patent on malting barley by the beer companies Heineken and Carlsberg. The core issue is that a bio-patent is allowed on mutations, but not on classical breeding.

Biopatents are always at the centre of socio-political debates – prominent examples are the biopatent on great apes or the biopatent on broccoli and pepper. Critics fear a displacement of classical breeding and the farmers, breeders or beer producers concerned. But even more so, consumers fear an unwelcome change in food.

Malting barley also falls into this category, and a patent on malting barley was at issue this week in a hearing before the Board of Appeal of the European Patent Office (EPO).

Appeal against patent on malting barley

The patent “Beverages made from barley and malt with a low dimethyl sulphide content” (EP2373154) of the Heineken and Carlsberg corporations was under scrutiny, as a complaint against this patent had been filed by environmental protection associations under the leadership of the alliance “No Patents on Seeds”. According to them, in this patent a genetic accidental adaptation is considered an invention, although the mutation occurred by chance and barley originates from conventional, conventional breeding. In this respect, it is feared that the entire biodiversity of crops will be affected if patent protection pushes back classical and conventional breeding.

In fact, according to the patent description, the invention relates to barley plants or parts thereof that carry a mutation in the gene coding for MMT that causes a complete loss of MMT activity (so-called “nullMMT” barley). The invention enables production processes of beverages with improved taste profiles, and also promises for a significant reduction of thermal energy input in the production of beer, the patent description explains.

But what is the legal situation, can mutations be placed under patent protection?

Malting barley mutations under patent protection?

Relevant here – since this is a European patent – is Article 53(b) EPC. According to this, no patent protection is possible for plant varieties or animal breeds or essentially biological processes for breeding plants or animals. But microbiological processes and the products obtained by means of these processes are patentable under Article 53(b) EPC. This is intended precisely to protect biological diversity, while allowing patent protection for technical progress.

In practice, however, biotechnological and genetic engineering interventions in the field of plants and microorganisms have become commonplace; think of optimised seeds, adaptations to climate changes and against pests, and simply the increased performance of plants and animals for the world’s food supply.

This is where Article 53(b) EPC becomes complicated and leads to the fact, criticised by critics, that patent protection pushes back traditional breeding and diversity. This is because every crossing step is an obstacle to patentability. However, technical steps before or after the crossing and selection process are patentable. Therefore, it is mainly technical selection procedures or product-by-process claims that obtain patent protection. Transgenic plants or animals and technically induced mutations are also patentable. Mutagenesis explicitly belongs to genetic engineering, the highest European court (ECJ) also ruled in July 2018.

The Board of Appeal rejected the appeal against the patent on malting barley by Heineken and Carlsberg. Once again, the EPO thus confirms the patentability of plants with certain mutations that can influence the formation of flavours.

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