Patentability in Europe of plants and animals obtained by an essentially biological process

In a recent communication, the European Patent Office (EPO) clarified that essentially biological processes for the production of plants and animals as well as plants and animals obtained by such processes are excluded from patentability.

Previously, the decisions G 2/12 and G 2/13 of the Enlarged Board of Appeal (EBA) of the EPO ruled that essentially biological processes for the production of plants and animals were excluded from patentability, while the plants and animals obtained by such processes were not excluded from patentability.

However, following a notice from the European Commission referring to the directive 98/44/EC and stating that the legislator´s intent was to exclude from patentability also plants and animals obtained by essentially biological processes all proceedings in examination and opposition cases at the EPO were stayed in November 2016.

To implement the change, Rules 27 and 28 EPC have been amended as follows with effect as from 1 July 2107:

Rule 27 (b):

"(b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;"

Rule 28 EPC:

1. The previous text has become paragraph 1 (a) to (d).

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."

Proceedings in examination and opposition cases concerning plants or animals obtained by an essentially biological process that have been stayed will now be resumed and examined according to the new practice.

//  Annika Unge Reis och Louise Tottie