Carlsberg, one of the world’s largest breweries, has filed further patent applications covering barley plants derived from conventional breeding, their usage in brewing as well as the resulting beer, new research by the NGO coalition ‘No Patents on Seeds!’ shows. In 2016, the company had already faced severe criticism from civil society groups because, together with Heineken, Carlsberg successfully applied to the European Patent Office (EPO) in Munich for patents on barley plants from conventional breeding, which are used for the production of beer and other beverages. In 2017, together with 40 other organisations, ‘No Patents on Seeds!’ filed oppositions against the patents EP2384110 and EP2373154. Hearings were held in October 2018 and, as a result, the patents were restricted and reduced to certain plants with specific mutations concerning the flavour of the beer. ‘No Patents on Seeds!’ filed a complaint against the decision arguing that the patents have to be revoked completely. Even though no final decisions have been taken, Carlsberg in 2019 once again tried to claim seeds, barley and beer as its ‘invention’ and filed further applications (WO2019129736, WO2019129739, WO2019134962) for patents on barley.

This is strongly criticised by the member organisations of ‘No patents on seeds!’ which see a great danger in the increasing number of patents on plants, seeds and farm animals and their effects on farmers, breeders, innovation and biodiversity. They consider such patents as an abuse of patent law and fear that the basic resources in agriculture and food production will be threatened. “Patents create monopolies. If conventionally bred plants and animals are claimed in patents as ‘inventions’, they cannot be used for further breeding without the permission of the patent holder,” said Christoph Then, spokesperson for ‘No Patents on Seeds!’. “The patent holder can control, hinder and even block access to biological diversity in food plants and farm animals. As a result, a handful of big corporations can acquire far-reaching control over our daily food production.”

As with the patents already granted by the EPO, the three new patent applications for barley do not involve any technical inventions or the use of methods of genetic engineering which would justify patenting them. “Instead, well known processes were used to trigger random mutations: seeds from barley plants were brought into contact with chemicals to speed up the mutation rate and enhance genetic diversity. Afterwards, further crossing and selection was carried out to breed plants with desirable characteristics,” says a press release published by ‘No patents on seeds!’. According to the coalition, barley kernels with changed starch composition are supposedly more suitable for brewing beer. Even though there is nothing new or technical in the process described in the patent, Carlsberg is claiming the resulting seeds, plants, the harvest as well as food and beverages, such as beer, as its invention.

The patents granted on barley in 2016 are an example of the legal chaos and questionable patent granting practice of the EPO with its 38 member states. According to European patent law, plants and animals “obtained from essentially biological processes”, unlike genetically engineered crops, are not patentable. However, EPO continued to grant patents on conventionally bred plants and animals. In 2017, due to pressure from the EU and civil society, EPO adopted new rules in order to exclude from patentability plants and animals derived from conventional breeding using methods like crossing and selection. But legal loopholes remained since patents on random genetic variations were not excluded. In December 2018, the problems were exacerbated when the Technical Board of the EPO decided that plants and animals derived from conventional breeding should generally be considered to be patentable ‘inventions’. In 2019, the EPO president decided to suspend all the proceedings on patents and animals from essentially biological processes until EPO’s highest legal institution, the Enlarged Board of Appeal, decides. A decision is expected in the first half of 2020. (ab)