The Brazilian PTO published a new technical opinion regarding the patentability of inventions related to transgenic plants

On May 9, 2023, the BPTO released the INPI/CPAPD technical opinion No. 01/2023, which provides guidance on the patentability of inventions related to transgenic plants, focusing on elite events.

The newly published technical opinion results from the revision of a technical opinion published in March 2022 and which was submitted to Public Consultation. The main point that led to the Public Consultation was the interpretation that everything that has been inserted into a cell, including DNA molecules, would be part of a living being, unless it was isolated. If it was inside the plant, it would not be patentable. The BPTO modified this wording, making clear that DNA molecules, isolated or not, may be eligible to patent protection, provided they are different from natural molecules.

Additionally, the BPTO maintained the concept of main and accessory inventions, maintaining the opinion that to evaluate the inventive step of transgenic plants it will be necessary to discuss the inventive step of the transgenic plant, which is the main invention and the core of the inventive concept. However, such accessory inventions would still need to be examined for the other patentability criteria.

Finally, unlike the initial wording that “it would always be necessary” to deposit seeds in Depositary Centers when the accessory invention is related to transgenic plants, the new wording clarifies that whenever the application claims matter that, at the time of deposit/priority, is obtained by processes involving randomness, it will be necessary to deposit seeds or equivalents with a Depositary Center for descriptive sufficiency purposes.

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