Patentability of plants and animal products at the EPO

Posted 26 May 2020

The EPO Enlarged Board of Appeal (“EBA” highest patent court at the EPO) confirms that plants and animal products produced by essentially biological processes are not patentable.

In the decision G3/19 dated 14 May 2020, the EBA found that plants, plant materials or animals, if exclusively obtained by an essentially biological process are excluded from patent protection.

This is the result of a lengthy legal dispute concerning the patentability of methods and products involving essentially biological processes (e.g. cross-breeding) and follows a Technical Board of Appeal Decision T 1063/18 stating the EPC was not clear on this matter.

To put this into perspective there are currently more than 250 pending patent cases to which this decision will apply.

Specifically whilst Art 53(b) EPC states that “European patents shall not be granted in respect of essentially biological processes for the production of plants or animals“, this was interpreted to mean the exclusion of essentially biological processes did not extend to products and so did not exclude patent protection for plant material such as fruit (Decision G2/12 and G2/13).

New Rule 28(2) EPC was introduced in July 2017 to facilitate the correct interpretation of Art 53(b) EPC. It states that “European patents shall not be granted in respect of plants and animals exclusively obtained by means of an essentially biological process”; however, in the Technical Board of Appeal Decision T1063/18 this clarification was not found to be helpful.

Following the decision T 1063/18, the EPO President referred the matter to the EBA to provide clarification.  The EBA concluded that product claims directed to plants, plant material or animals, if exclusively obtained by means of an essentially biological process, are not patent eligible.

Summary

In summary, according to G 3/19, plants and animal products obtained by essentially biological processes are not patentable.

This decision has no retroactive effect on European Patents granted before 1 July 2017 or applications having an effective filing date prior that date.

If you have any queries on the Decision or how you may be affected by the changes, please do not hesitate to contact a member of our Team who would be happy to assist with your queries.

Author: Dr Astrid Lorenz