Thursday, June 29, 2017 No longer a European patent for plants or animals exclusively obtained by an essentially biological process

As we discussed in our blog of 19 December 2016, there has been a long debate about patentability of plants/animals under the EPC. 
The final (?) chapter may now be closed: the Administrative Council took a decision to amend the relevant Regulations in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process.  This ends the option allowed by the Enlarged Board in G2/12 and G 2/13. The new rule enters in force almost immediately on 1 July 2017.

The key change to the rules is to introduce a new paragraph to R.28 (the current content being moved to R.28(1)):

R.28(2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.

To make sure that R.27(b) cannot be used as an escape, this rule has been made subject to R.28(2):
R.27 Biotechnological invention shall also be patentable if they concern:
(a) ...
(b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;
(c) ...

The full text of the press release of the EPO can be found here and is reproduced below.

On a proposal of the European Patent Office its Administrative Council took a decision to amend the relevant Regulations in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process.

The proposal from the EPO took account of a Notice of the European Commission from November 2016 related to certain articles in the EU Directive on biotechnological inventions (98/44/EC).

This Directive was implemented in the EPO's legal framework in 1999. The Directive excludes essentially biological processes from patentability but does not provide for a clear exclusion for plants or animals obtained from such processes. However, in its Notice the Commission clarified that it was the European legislator's intention to exclude not only processes but also products obtained by such processes.

The EPO's proposal adopted by its Administrative Council today almost unanimously safeguards uniformity in harmonised European patent law. It contains an important precision to patenting practice at the EPO, providing more clarity and legal certainty for users of the European patent system.

The new provisions will apply with immediate effect starting on 1 July 2017. Proceedings in examination and opposition cases concerning plants or animals obtained by an essentially biological process have been stayed since last November following the Commission's Notice. These cases will now be gradually resumed and be examined according to the clarified practice.

Further information

• News: "EPO stays proceedings in certain biotechnology cases"(12 December 2016)
• Notice of the European Commission (3 November 2016)
• EU Biopatent Directive (Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions)
• Decisions G 2/12 and G 2/13 of the EPO's Enlarged Board of Appeal (25 March 2015)
• Biotechnology patents at the EPO

Photo "Broccoli" by Mike Mozart obtained via Flickr under CC BY 2.0 license (no changes made).