Managing IP is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

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

The Supreme Court, which is hearing two IP cases this week, should limit the power of US courts to rule on foreign sales
Safety standards wouldn’t lose copyright protection when named in law, so long as they were accessible for free online
In-house tech sources say Amgen v Sanofi has the potential to stifle their prosecution and litigation strategies if SCOTUS’s decision is too broad
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
The Federal Circuit said tech firms can challenge the way the USPTO implemented Fintiv, but that won’t mean much for practitioners, say counsel
The England and Wales High Court handed down one of the most hotly anticipated FRAND rulings for some time
Funders discuss different IP portfolio funding options and how they decide whether to offer preferential terms and pricing
The issue of the Unified Patent Court’s third central division needs resolving before IP owners can fully embrace Europe’s new era
Foreign firms and lawyers, including IP practitioners, can now practise in India after years of talk and no action
Most Indian counsel won’t immediately look beyond the Delhi High Court for IP cases, but new forums could potentially change their minds