Technology, Patents and Markets: The Implied Lessons of the EU Commission’s Intervention in the Broccoli/Tomatoes Case of 2016 for Modern (Plant) Genome Editing

Abstract

The article deals with plant patents and examines the interplay between technology, patents and markets from a twofold perspective, a legal–technical and a conceptual one. On the legal–technical level, it raises the question whether the Commission’s Notice of 8 November 2016 on the EPO Broccoli/Tomatoes constellation and the novel Rule 28 EPC-IR (2017) have an impact on the patentability of modern genome editing techniques. It argues that these affect patentability and limit the available protection scope to bare process claims. On the conceptual level, the article is interested in the role of patent law in structuring primary and secondary markets. It submits that in the face of modern biotechnology’s challenges, patent law cannot restrict itself to the classical principles of patentability, dependency and exhaustion, which disconnect patentability requirements and scope. It argues that the EU Biotech Directive is to be interpreted as a relinking of patentability and scope in order to also serve the freedom to operate on secondary markets.