Patentability of products of essentially biological processes

The Enlarged Board of Appeal concluded in G 2/12 and G 2/13 that plants and animals obtained by essentially biological processes are potentially patentable even though the essentially biological processes used to obtain them are excluded from patentability.

However, the European Commission issued an Interpretative Note on 3 November 2016 stating that the intention of the Biotech Directive, and by implication the sections of the European Patent Convention (EPC) that are based upon it, was to exclude plants and animals obtained by essentially biological processes from patentability. This is thought to be an attempt by the European Commission to reverse what plant breeders see as an encroachment by patents on Plant Breeders’ Rights as a result of the G 2/12 and G 2/13 decisions. Although the Commission’s Interpretative Note was not binding, the EPO nevertheless announced on 12 December 2016 that all examination and opposition proceedings relating to plants and animals obtained by an essentially biological process were to be stayed while the matter was considered.

The EPO stated on 29 June 2017 that they have decided to change their practice to exclude plants and animals obtained by essentially biological processes from patentability. The EPO also decided that Rules 27 and 28 EPC were to be amended to explicitly exclude such plants and animals from patentability. These changes took effect from 1 July 2017 and all proceedings stayed by the EPO were resumed under this new practice.     

This denial of patent protection for plants and animals obtained by essentially biological processes amounts to a complete reversal of practice by the EPO although, as only a relatively small number of patents relate to this subject matter, this is likely to affect only a small number of cases. Nevertheless, it is still possible for the interpretation of the relevant section of the Biotech Directive to be referred to the CJEU, which is the highest authority that is competent to interpret EU law, and hence this may still not be the end of the matter.

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