the Brazilian PTO publish technical note No. 01/2023, which refers to the patentability of inventions associated with transgenic plants
Note No. 01/2023
On May 9, 2023, the Brazilian PTO published technical note No. 01/2023, which refers to the patentability of inventions associated with transgenic plants, in particular, elite events. This technical note is the result of the public consultation proposed in March 2022 and focused on elite events.
The referred technical note is directed to topics not fully contemplated in the Guidelines for Examination of Patent Applications in the Area of Biotechnology, such as: i) the need to examine the main invention for the granting of accessory inventions, even if the main invention it is not patentable; ii) the evaluation of the novelty and inventive activity of transgenic events; iii) the possibility of patenting accessory inventions to transgenic plants and their parts, provided they meet the patentability requirements and conditions; iv) defines an elite event as a genetic modification event that gives the plant a superior technical effect when compared to other transformation events, not being the result of arbitrary selection; v) the patentability of herbal products; and vi) the patentability of inventions related to biological material when isolated from transgenic plants and different from natural occurrence.
The technical note also establishes that even if the transgenesis event solves a technical problem in a new and inventive way, the plants and their parts that contain the same are not patentable in view of the provisions of art. 18 (III) of Brazilian IP Law.
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