The Enlarged Board of Appeal of the European Patent Office has decided that plants and their products are not patentable in Europe if they have been bred using an essentially biological process.
In recent years, the Enlarged Board of Appeal of the EPO has frequently dealt with the application of Article 53b) EPC. Article 53(b) EPC states that plant varieties or animal breeds or essentially biological processes for obtaining a plant or animal are excluded from patentability.
Previous decisions (G1/07 and G2/08) have already stated that the term "essentially" may give some scope for possible intervention in plant varieties. Thus, processes involving the modification of the genome by means of a technical intervention were patentable. Following further decisions (G2/12 and G2/13), product claims and product-by-process claims directed to plants or plant material were considered patentable. This applied even if the product was obtained by an essentially biological process.
In 2017, R 28(2) EPC was introduced into the Implementing Regulations to the EPC. Rule 28(2) EPC states that plants or animals obtained exclusively by an essentially biological process are not patentable. This rule is thus in clear contradiction with previous decisions relating to A 53(b) EPC.
In the present decision, it now seems clear that, against the background of Rule 28(2) EPC, product claims and product-by-process claims relating to plants, plant material or animals obtained exclusively by an essentially biological process are not patentable. This rule does not apply to patents granted before 1 July 2017 (the date of entry into force of R 28(2) EPC) or to patent applications filed and pending before that date.