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EPO Board of Appeal upholds patent for a better-tasting barley variety

Date: 30 June 2021

The EPO Board of Appeal has approved a patent for a beverage prepared from a barley plant. The plant carries a natural gene mutation which causes the drinks made from the extract of the barley to taste better.


On June 8 2021, the EPO Board of Appeal dealt with the proceedings of a number of opponents against the European patent EP 2 373 154. The patent was maintained as granted and the minutes of the hearing can be read here: Register Plus (epo.org)


Claimed is directed to: 


1. A beverage prepared from a barley plant, or a part thereof, wherein said beverage contains a level of dimethyl sulfide (DMS) below 20 ppb and a level of S-methyl-I-methionine (SMM) of less than 20 ppb, and wherein said barley plant, or part thereof, carries a mutation in the gene encoding methionine S-methyltransferase (MMT), causing a total loss of functional MMT.


Claim 6 however is perhaps the more interesting claim because it was directed to the barley plant itself:


6. A barley plant, or part thereof, wherein the barley plant carries a mutation in the gene encoding methionine-S-methyltransferase (MMT) that causes a total loss of MMT function.


It was decided that, contrary to the opponents’ request, the patent would not be revoked.


We have previously reported on patents claiming plants or animals obtained by essentially biological (breeding) processes. The large Board of Appeal had decided that, because of the new Rule 28 (2) of the European Patent Convention that entered into force on July 1, 2017, patents claiming this subject matter are excluded from patentability.


See our article for more information on the non-patentability of natually-bred plant varieties: Plants produced by essentially biological processes not patentable


This exclusion, however, only applies to patent applications filed after July 1, 2017. A 'grandfathering' applies to previously filed applications or granted patents. The patent application in this case (filed on December 1, 2009 and granted on April 20, 2016) benefited from this and the Board of Appeal in this case stated “in accordance with G 3/19, Rule 28(3) EPC was not applied retroactively. Therefore, the claims of the patent did not contravene this rule and the patent was upheld as granted.


If you have any questions on the subject of "patenting plants" or on plant variety protection, we would be happy to assist you.