A key change has recently been implemented under European Patent Law in order to exclude from patentability, plants and animals “exclusively” obtained by essentially biological processes.

Under the European Patent Convention plants and animals are patentable as long as they are not confined to a particular plant or animal variety. However, newly implemented rules (Rules 27 and 28 of the Implementing Regulations to the Convention on the Grant of European Patents) exclude from patent eligibility plants and animals which are obtained solely by essentially biological processes.

The new rules entered into force on 1 July 2017. It is important to note that the new rules, as amended by a decision of the EPO Administrative Council, will apply to European patent applications filed on or after this date, as well as to European patent applications and European patents pending at that time.

Background to the change:

The EPO Enlarged board of appeal (EBA)’s decisions G 2/12 (Tomatoes II) and G 2/13 (Broccoli II) of March 25, 2015 concluded that Article 53(b) EPC does not prevent a product claim directed to a plant or plant material/par obtained by essentially biological processes. These decisions created some concern that allowing claims to plants or animals made by the excluded essentially biological process (EBP) would allow a patent proprietor to stop others using the non-patentable EBP taught by the patent, and would also limit access for breeders to patented material.

As a result of this, the European Commission issued a notice on November 8, 2016 confirming that the EU legislator’s intention in the Biotech Directive 98/44/EC was to exclude from patentability products that are obtained by means of essentially biological processes.

Following this, the EPO stayed all proceedings before the examining and opposition divisions of the EPO in respect of cases relating to plants or animals obtained by essentially biological processes on 24 November 2016, which will now resume as of 1 July 2017 in view of the recent change to the rules.

What next?

Although the amended rules are now in force, there is still some uncertainty as to how the term “exclusively” will be interpreted by the European Patent Office in practice.

Significantly, it is still possible to obtain a patent for plants and animals in Europe, provided they are not obtained exclusively by essentially biological processes, and are not confined to a plant or animal variety.