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Navigating the patent maze: Nap Hal November 13, 2004

Posted by mais in India, IP Systems, Litigation, Patent.
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Navigating the patent maze: Nap Hal – Comments Addressed: “Nap Hal – Comments Addressed

An interested reader commented on the post in which I expressed approval for the decision of the Indian Government to not oppose the European Patent, now owned by Monsanto, that used Nap Hal. The reader raised several points that I would like to address. I also hope that it evokes more discussion on this topic area.

(Sidebar – there are currently 5 parties opposing this patent, including Greepeace and the European Flour Milling Association)

The reader raises several points. The first point, quoted below, speaks to whether the patent claims are in violation of the European Patent Convention.

The Patent in question explicitly claims a wheat variety, and so is squarely in violation of the European Patent Convention.??

The short answer is that the patent in question (EP 0 445 929) does not claim any plant varieties. The claims are directed to soft-milling wheat with particular characteristecs, flour prepared from that wheat, dough or batter prepared from the flour, edible products made from the dough or batter, and biscuits made from the flour.

The second point of the reader is that ‘the disclosure of the patent shows that the genetic traits which are key to the patent (double null allele in glu-D1 gene) were wholly derived from the landrace developed in India, namely, Nap Hal.’

I’m not sure what the reader’s objection is other than the landrace came from India. In fact, the landrace was obtained from a public germplasm bank. The accession was placed prior to the Convention on Biological Diversity, so that treaty does not control the situation. Until the CBD, typically there were no restrictions on accessions or, in the case of the CGIAR the restrictions regarding intellectual protection placed on germplasm held in FAO Trust were limited to the variety itself and did not extend to derivatives (such as the wheat claimed in the Monsanto”

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