Sat 1st Jul 2017
Patentability at the EPO of plants and animals obtained by essentially biological processes
From 1 July 2017, the European Patent Office (EPO) will be applying an amended version of Rules 27 and 28 EPC. Most notably Rule 28 EPC has been amended to indicate explicitly that patents will not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.
This change follows a Notice from the European Commission from November 2016 related to certain articles in the EU Directive on biotechnological inventions (98/44/EC).
This Directive excludes essentially biological processes from patentability but does not provide for a clear exclusion for plants or animals obtained from such processes. However, in contrast to the position previously taken by the EPO Enlarged Board of Appeal, the Commission clarified that it was the European legislator's intention to exclude not only processes but also products obtained by such processes.
Proceedings in examination and opposition cases concerning plants or animals obtained by an essentially biological process have been stayed since last November following the Commission's Notice. These cases will now be resumed and examined under the amended Rules.
This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis and answer any questions you may have. Please note that the law may have changed since the day this was first published in July 2017.