EPO president refers plant patentability decision for appeal

European Patent Office (EPO) president António Campinos will refer a recent decision on the patentability of plants exclusively obtained by essentially biological processes to the office’s Enlarged Board of Appeal (EBA).

The news follows long-running legal confusion over whether plant products produced by essential biological processes are patentable.

Last December, the EPO’s Technical Board of Appeal 3.3.04 issued decision T 1063/18, which ruled that rule 28(2) of the European Patent Convention (EPC) is incompatible with Article 53(b) of the same convention.

The case dealt with the patentability of new pepper plants and fruits with improved nutritional value.

Article 53(b) holds that methods of producing plants and animals by essentially natural processes are not patentable, while the recently amended rule 28(2) applied this provision to plants produced by essentially biological processes.

In a  press release issued Friday, March 29, the EPO indicated that Campinos had the backing of the body’s administrative council for his proposal to refer the decision to the EBA.

In the statement, the EPO said that members of the office’s contracting states had “expressed their concerns with regard to the legal uncertainty caused by decision T 1063/18”.

Campinos will “proceed swiftly to submit the referral”, the statement said.

According to the EPO, clarity is needed in order to “restore legal certainty fully and speedily in the interest of the users of the European patent system and the general public”.

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