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Patentability of plants and animals: the EBA opinion

date: 07.06.2020
Area: Intellectual Property

On 14 May 2020, the Enlarged Board of Appeal (EBA) of the EPO issued an opinion on Case G 0003/19 denying patentability of plants and animals obtained exclusively by essentially biological processes. The intervention of the court became necessary following the decision of the EPO’s Technical Board of Appeal on a case concerning the possibility of patenting a new type of chilli plant. In particular, the EBA stated that Article 53(b) of the European Patent Convention, in so far as it excludes ‘plant varieties or animal breeds as well as essentially biological processes for obtaining plants or animals’ from patentability, must be interpreted in a dynamic manner, in the sense that it also excludes patentability of animals or plants obtained exclusively by the same type of process. In other words, in line with its previous rulings in Cases G2/12 and G2/13, the EBA stated that, not only is the essentially biological process for the creation of animal or plant varieties not patentable, but neither is the product of that process.

This result was achieved by the EBA, in particular, in view of the decision of the European Patent Organisation to introduce the rule that “European patents are not granted for plants or animals obtained exclusively by an essentially biological process” (Rule 28(2)) in the implementing regulation of the European Patent Convention. In fact, that provision, in force since 1 July 2017, was clearly at odds with previous decisions of the EBA, which was, therefore, once again called upon to rule on the matter and considered that it departed from its previous decisions. However, the new interpretation of Article 53(b) of the EPC will not have retroactive effect with respect to patents granted – or patent applications filed – before 1 July 2017.

The EBA’s opinion can be viewed on the following link:

https://www.epo.org/law-practice/case-law-appeals/pdf/g190003ex1.pdf

Patentability of plants and animals: the EBA opinion

date: 07.06.2020
Area: Intellectual Property

On 14 May 2020, the Enlarged Board of Appeal (EBA) of the EPO issued an opinion on Case G 0003/19 denying patentability of plants and animals obtained exclusively by essentially biological processes. The intervention of the court became necessary following the decision of the EPO’s Technical Board of Appeal on a case concerning the possibility of patenting a new type of chilli plant. In particular, the EBA stated that Article 53(b) of the European Patent Convention, in so far as it excludes ‘plant varieties or animal breeds as well as essentially biological processes for obtaining plants or animals’ from patentability, must be interpreted in a dynamic manner, in the sense that it also excludes patentability of animals or plants obtained exclusively by the same type of process. In other words, in line with its previous rulings in Cases G2/12 and G2/13, the EBA stated that, not only is the essentially biological process for the creation of animal or plant varieties not patentable, but neither is the product of that process.

This result was achieved by the EBA, in particular, in view of the decision of the European Patent Organisation to introduce the rule that “European patents are not granted for plants or animals obtained exclusively by an essentially biological process” (Rule 28(2)) in the implementing regulation of the European Patent Convention. In fact, that provision, in force since 1 July 2017, was clearly at odds with previous decisions of the EBA, which was, therefore, once again called upon to rule on the matter and considered that it departed from its previous decisions. However, the new interpretation of Article 53(b) of the EPC will not have retroactive effect with respect to patents granted – or patent applications filed – before 1 July 2017.

The EBA’s opinion can be viewed on the following link:

https://www.epo.org/law-practice/case-law-appeals/pdf/g190003ex1.pdf