All material subject to strictly enforced copyright laws. © 2022 Managing IP is part of the Euromoney Institutional Investor PLC group.

EPO: Plants which are not patentable

Sponsored by

inspicos-400px.png
Young plant tree sprout in woman hand. Concept of farming and environment protecting.

The Enlarged Board of Appeal of the EPO (EBA) has recently issued opinion G 3/19, which concludes that plants and animals exclusively obtained by “essentially biological processes” are exempt from patentability. This finding only affects patents derived from patent applications filed after July 1 2017.

Summary

Article 53(b) of the European Patent Convention (EPC) exempts 1) plant and animal varieties and 2) essentially biological processes for the production of plants and animals from patentability. In 2015, the EBA concluded in its consolidated decisions G 2/12 and G 2/13 that this exemption did not extend to products of such methods. Since July 1 2017, Rule 28(2) EPC has provided that under Article 53(b) of the EPC, plants obtained exclusively from an essentially biological process are also exempt from patentability. However, in 2018, a Technical Board of Appeal held in its controversial decision T 1063/18 that new Rule 28(2) EPC conflicted with Art. 53(b).

The president of the EPO in 2019 referred a point of law to the EBA concerning the interpretation of Article 53(b) of the EPC.

The EBA initially endorsed its earlier decisions on the matter. But in contrast to the Board deciding T 1063/18, the EBA found that in the time after Decisions G2/12 and G2/13 the meaning of Article 53(b) could change. Consequently, the EBA now holds that introduction of Rule 28(2) EPC and its implementation throughout Europe is a development that provides for a new interpretation of Art. 53(b), namely that plants obtained from essentially biological processes are exempted. Somewhat uniquely, the EBA set a cutoff date for the new interpretation of July 1 2017, meaning that any European patent application pending on that date and seeking protection for plants obtained from essentially biological processed is not affected by the new interpretation.

Peter Koefoed

more from across site and ros bottom lb

More from across our site

Morgan Lewis snags Duane Morris patent team; Purdue University drops smartphone suit against Google; Meta faces $175m bill over voice comms patents; Vans wants ‘Old Skool’ parody off market; SG wants SCOTUS review on TM extraterritoriality; Netflix drops Bridgerton musical case
Managing IP has partnered with IP leaders from across the Asia-Pacific region to analyse recent court cases and analyse incoming regulations in India, Korea, and Japan
Simon Malynicz tells Managing IP why he went back to Hogarth Chambers from Three New Square
Sources at five litigation funders explain how they identify new IP business and how counsel can help
Lawyers at Pinsent Masons explore strategic opportunities at the UPC for patentees and potential defendants
The claim, filed at the England and Wales High Court, follows lawsuits launched by Moderna in the US and Germany
Litigation funders set out what they look for in cases and how external lawyers can get their attention
The NIST director and register of copyrights were added as co-vice chairs of the Council for Inclusive Innovation, among others
Unnat Pandit, the newly appointed head of the Indian IP office, is working on bridging communication gaps and using tech to resolve administrative holdups
Erso Capital said the decision to create a pool specifically for patent litigation was based on rising demand in the tech and life sciences sectors
We use cookies to provide a personalized site experience.
By continuing to use & browse the site you agree to our Privacy Policy.
I agree