EPO clarifies law on plant and animal patentability

The  European Patent Office (EPO) has said that plants and animals exclusively obtained by essentially biological processes are not patentable.

EPO president  António Campinos asked the Enlarged Board of Appeal to consider the issue after a contradiction appeared to emerge in European law on the patentability of certain plants and animals.

The dispute arose after the European Patent Organisation’s administrative council (AC) introduced a new rule into the European Patent Convention (EPC) in 2017.

The 2017 rule,  Rule 28(2) EPC, states that, under Article 53(b) of the EPC, “European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process”.

In 2018, an EPO technical board of appeal (in decision T 1063/18) found that this new rule did not require a new interpretation of Article 53(b), which states: “European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals.”

The EPO’s enlarged board had previously held that, before Rule 28(2) came into force, essentially biological processes for producing plants and animals were not patentable, but this did not extend to those plants or animals themselves.

In today’s highly-anticipated opinion G 3/19, the Enlarged Board revised this interpretation of Article 53(b) in light of the new rule brought into effect in 2017.

“A particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time,” the enlarged board said in its decision.

The new interpretation of Article 53(b) will not apply retroactively to patents granted before 1 July 2017, or to pending European patent applications filed before that date.

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