Tuesday, April 09, 2019 G 3/19 - Patentability of plants exclusively obtained by essentially biological processes: the referral

The full text of the referral by the President to the Enlarged Board of Appeal relating to the patentability of plants exclusively obtained by essentially biological processes is available online. Also see our earlier posts (w.r.t annoucemcent, earlier annoucement,  T 1063/18 and first news message)). The accompanying letter is dated 4.04.2019 and was received in the BoA Office on 08.04.2019.

Under Article 112(1)(b) EPC the President of the European Patent Office refers the following points of law to the Enlarged Board of Appeal:

1. Having regard to Article 164(2) EPC, can the meaning and scope of Article 53 EPC be clarified in the Implementing Regulations to the EPC without this clarification being a priori limited by the interpretation of said Article given in an earlier decision of the Boards of Appeal or the Enlarged Board of Appeal?

2. If the answer to question 1 is yes, is the exclusion from patentability of plants and animals exclusively obtained by means of an essentially biological process pursuant

to Rule 28(2) EPC in conformity with Article 53(b) EPC which neither explicitly excludes nor explicitly allows said subject-matter?

Sunday, April 07, 2019 News: President referred questions to the Enlarged Board on patentability of plants exclusively obtained by essentially biological processes

Following his earlier annoucement, the President has submitted questions too the Enlarged Board of Appeal which relate to the patentability of plants exclusively obtained by essentially biological processes and to decision T 1063/18 (also here). According to a news meesage from the EPO posted last Friday, the President of the EPO seeks the Enlarged Board of Appeal to clarify the applicable legal framework.
The full text of the referral is not yet available. It will be interesting to see which clarifiation the Preseident seems to be required as one may argue that T 1063/18 has already given the answer, as that decision analyzed whether conclusion from G 2/12 needed any adaptations after the introduction of Rule 28(2) EPC subsequent to a notice from the EU Commission (no). Also, the news message below does not mention any conflicting decision, which is needed for the referral to be admissable under article Art.112(1)(b) EPC. (However, also with an inadmissible referral, the Enlarged Board may give a clarification as it did in the software decision G 3/08). So, the full text will be highly interesting, we will keep you posted!

Sunday, March 31, 2019 News: President will ask Enlarged Board for opinion on patentability of plants exclusively obtained by essentially biological processes

In the latest meeting of the Administrative Council, the President expressed his view that referral of the case to the Enlarged Board of Appeal is justified and necessary, in view of the legal uncertainty caused by decision T 1063/18 (also here).