On 20 February 2017, the Competitive Council in Brussels agreed with the Notice of the European Commission regarding the patentability of plants/animals obtained by means of essentially biological processes, such as for example classic breeding (see previous report by Bart Swinkels of 7 November 2016).

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”.

However, the European Commission’s Notice is not legally binding: it is not up to the Commission but rather for the national Courts or the Boards of Appeal of the European Patent Office (EPO) to interpret the law. Furthermore, the European Commission has no legislative or other power with respect to the European Patent Convention (EPC), which governs the granting of European patents, including for some non-EU countries such as Norway, Switzerland and Turkey.

The Commission’s Notice therefore does not have a direct effect on patentability of plants obtained by means of essentially biological processes under the EPC.

Nevertheless, on 12 December 2016, the EPO announced that if the Contracting States of the EPC agree with the Commission’s view, this will be implemented by the EPO. Meanwhile, the EPO has stayed all proceedings in cases in which the invention is a plant or animal obtained by an essentially biological process.

We conclude that it is currently unclear whether plants obtained by means of essentially biological processes remain patentable. Plants that are not obtained by means of essentially biological processes, but for example by means of genetic engineering, are outside the scope of this Notice and remain patentable.