3 November 2016 the EU Commission issued a Notice regarding the patentability of plants/animals obtained by means of essentially biological processes.

In the view of the Commission: “the EU legislator’s intention when adopting Directive 98/44/EC was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes”.

The EU Commission’s Notice is however not legally binding. Indeed it is not up to the Commission but rather for the Courts or Boards to interpret the law.

In any event the EU Commission has no legislative or other power over the European Patent Convention (EPC), which governs the granting of European Patents, including for non-EU countries such as Norway, Switzerland or Turkey. The Commission’s Notice therefore does not have any effect on patentability of plants or animals obtained by means of essentially biological processes under the EPC.

European Patents on plants or animals obtained by such conventional breeding methods have always been and remain possible despite the Commission’s Notice, which also should not effect the validity of such EP patents in national Courts of EPC countries.