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Patents for plants: EPO Enlarged Board provides some guidance

In Europe, it is possible to obtain a patent for a plant, provided that it meets the usual requirements of novelty and inventive step and provided that the claimed subject matter does not constitute a “plant variety”. However, essentially biological processes for the production of plants or animals are not patentable.

Issues in two pending cases at the European Patent Office resulted in questions being referred some time ago to the EPO’s Enlarged Board of Appeal for adjudication. Those questions relate to whether the prohibition of patents for essentially biological processes means that the products of such processes also cannot be patented. These  are the second set of referrals to the Enlarged Board in relation to this subject matter, and the two cases are commonly referred to as Broccoli II and Tomatoes II.

The Enlarged Board has now issued its decision, and its views are summarised in the headnote for the Broccoli II case:

1. The exclusion of essentially biological processes for the production of plants in Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material such as plant parts. 

2. (a) The fact that the process features of a product-by-process claim directed to plants or plant material other than a plant variety define an essentially biological process for the production of plants does not render the claim unallowable.

2. (b) The fact that the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application does not render a claim directed to plants or plant material other than a plant variety unallowable.

3. In the circumstances, it is of no relevance that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Article 53(b) EPC.

In summary, this is positive news for those seeking patent protection in Europe for new and inventive plants. Even if the process by which the plant is produced is essentially biological (and hence not patentable), the plant itself may still be patented.

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