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Groundbreaking news from the EPO?

Plants produced via essentially biological processes appear patentable after all.

It seems that the Board of Appeal of the European Patent Organization decided that plants that are produced according to essentially biological processes are still patentable in contrast with the recently amended European Patent Convention amendment (Rule 28 of the European Patent Convention). Would this indeed be the case, then the Boards of Appeal overrule a rule of the same organization and it appears that novel plant products grown via essentially biological processes, can still be patented.

The Board of Appeal of the European Patent Office has decided on 05-12-2018 that the recent amendment of Rule 28(2) EPC is in conflict with Art. 53(b) EPC. As Art. 164(2) EPC indicates that Articles precede Rules, the Board of Appeal has decided that the amended rule 28(2) is void.


Rule 28(2) EPC as entered into force on 1 July 2017 states that "European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.". The modification of Rule 28(2) EPC was implemented after the European Commission in the "Commission Notice on certain articles of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions" essentially rolled back previous decisions of the Enlarged Board of Appeal of the EPO to uphold the broccoli and tomato patents (Enlarged Board of Appeal decisions G 2/12 (tomatoes ii) and G 2/13 (broccoli ii)).

The Board of Appeal has now decied that the abovementioned Rule 28(2) EPC is in conflict with Art. 53(b) EPC, which states that: "European patents shall not be granted in respect of: (a) ...; (b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof; and (c) ...."


Hence, it currently seems that plants and animals obtained via essentially biological processes are patentable. This is exciting news for the European agrotechnological industry which may have gained additional means to protect their intellectual property, but a setback for parties striving for as much freedom as possible in this area.


The news reported herein comes from reports of the oral proceedings related to case T 063/18. The EPO has, however, not yet published the decision of the Board of Appeal. We have thus not yet been able to verify this news.

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