EU parliament challenges EPO on plant patentability
The European Parliament has said that the internal rules of the European Patent Office (EPO) “must not undermine democratic political control of European patent law”.
In a resolution passed last Thursday, September 19, the parliament urged the European Commission and EU member states to do “everything in their power” to obtain legal clarity from the EPO regarding the patentability of products obtained exclusively from biological processes.
The dispute between the parliament and the EPO originates in a December 2018 decision of the latter’s technical board, which established what the parliament called a position of “legal uncertainty”.
That decision, T 1063/18, stated that rule 28(2) of the European Patent Convention (EPC), which governs the granting of European patents, is incompatible with Article 53(b) of the same agreement.
The EPO adopted rule 28(2), providing that "European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process", in 2017.
In December last year, the EPO’s board of appeal concluded that this rule was “in conflict” with the older article 53(b), which excludes “plant or animal varieties or essentially biological processes for the production of plants or animals” from patentability.
The European Parliament has insisted that plants obtained from biological processes must not be patentable.
In last Thursday’s resolution, the parliament said that any move to patent such plants would undermine both the EPC and EU law.
In March this year, EPO president António Campinos referred T 1063/18 to the EPO’s enlarged board of appeal in an attempt to resolve the legal impasse.
The EPO said this was necessary in order to “restore legal certainty fully and speedily in the interest of the users of the European patent system and the general public”.
The parliament has now called on the appeal board to restore legal certainty “without delay” by confirming that plants obtained by biological processes are not patentable.
In the resolution, the parliament also called on the commission to ensure that patent protection does not extend to such plants as part of trade negotiations with non-EU states, as well as all discussions on the harmonisation of patent law.
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