European Union: The EPO Has Decided That Products Of Essentially Biological Processes Are To Be Excluded From Patentability

The European Patent Office (EPO) has announced  that the Administrative Council has decided "to amend the relevant Regulations in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process". The Administrative Council has therefore amended Rules 27 and 28 EPC to effect this change. Most notably, Rule 28 has been amended to add an additional paragraph (2):

(2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.

This rule change came into force on 1 July 2017 and applies to all proceedings (whether examination or opposition) before the EPO.

As previously reported here, the European Commission adopted a Notice in November 2016 that stated that products of essentially biological processes should be excluded from patentability as that was the legislator's intention. This view was in contrast to previous EPO Enlarged Board of Appeal Decisions (reported here), which held that the exclusion under Article 53(b) to essentially biological processes should be interpreted narrowly and therefore not exclude products of essentially biological processes from patentability.The EPO stayed all examination and opposition proceedings relating to this subject matter in December 2016. This pause gave the EPO time to consider its position. The EPO has stated that following the decision, proceedings will now begin to resume gradually and be examined according to the new practice.

It appears that this change means that the previous "Broccoli" and "Tomatoes" cases would be decided differently today and that neither patent would be upheld; although this may depend on whether they were held to be "exclusively obtained" by means of an essentially biological process – an issue on which we can hope for further guidance in due course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.