On 29 June 2017, the Administrative Council of the European Patent Organisation (EPO) made a decision by which it intends to change the earlier practice of the EPO regarding the patentability of products obtained by an essentially biological process. Said decision of the EPO amends Rules 27 and 28 of the Implementing Regulations to the European Patent Convention (EPC) by inter alia stating that plants and animals exclusively obtained by means of an essentially biological process will no longer be patentable. The decision entered into force on 1 July 2017. The amended rules are not only applied to European patent applications submitted on or after 1 July 2017, but also to European patent applications and European patents pending at that time.
In general, this decision of the Administrative Council was intended to bring a shift to the earlier practice of the Enlarged Board of Appeal (EBA) based on two decisions from 2015: "Tomatoes II" (G2/12) and "Broccoli II" (G2/13). In its earlier practice, the EBA had ruled that Article 53(b) of the European Patent Convention (EPC), listing exceptions to patentability, should be interpreted narrowly and, therefore, plants and animals obtained from using essentially biological processes were held to be patentable. According to the decisions of the EBA, a patent could be granted to plant and animal products even if the processes used to obtain such products (e.g. selection and crossing of a plant) were essentially biological and thus as such not patentable.
After the Tomatoes II and Broccoli II decisions of the EBA, the European Commission considered corresponding questions under the EU Biotech Directive (98/44/EC) and concluded that the EBA's decisions on patentability of such products risked running into conflict with EU legislation. On 3 November 2016, the European Commission published a notice (2016/C 411/03) where it established that under the EU Biotech Directive, the intention of EU legislator was not to grant patents for products obtained by essentially biological processes.
Following the notice of the European Commission, the EPO ex officio decided to stay all proceedings in relevant examination and opposition cases even though the EPO is not formally bound by the views of the European Commission. This status quo remained until the aforementioned decision of the EPO on 29 June 2017, which brought the practice regarding the patentability of plant and animals obtained by essentially biological process in line with EU legislation, as it had been interpreted by the Commission.
However, it remains to be seen whether the earlier decisions Tomatoes II and Broccoli II could still continue to play a role in the future practice of the EBA despite of the decision of the Administrative Council. Rules 27 and 28 of the Implementing Regulations now amended by the EPO serve as guidance in clarifying the scope of Article 53(b) of the EPC, but in case of conflict between the EPC and the Implementing Regulations, the EPC would prevail.