EPO Clarifies Patent Exclusions for Plants and Animals Derived Solely by Biological Breeding

The European Patent Office (EPO) has amended its Regulations to exclude from patentability plants and animals that are obtained exclusively through an essentially biological breeding process.

The decision, made at the 152nd meeting of the Administrative Council, follows years of debate and earlier contrary rulings by the Enlarged Board of Appeal in the Broccoli-II and Tomato-II cases (G 2/12 and G 2/13), which held that plant products such as fruits, seeds and plant parts are patentable even when derived via essentially biological breeding methods involving crossing and selection.

According to a press release issued today, the proposal from the EPO took into account a November 2016 Notice from the European Commission regarding certain articles in the EU Directive on biotechnological inventions (98/44/EC).

The Directive excludes essentially biological processes from patentability but does not explicitly exclude products obtained from such processes. In its Notice, the Commission clarified that the European legislator intended to exclude not only the processes but also the products resulting from them.

The new provisions come into force immediately on 1 July 2017. Examination and opposition proceedings involving plants or animals produced solely by an essentially biological process have been suspended since last November following the Commission’s Notice. Those proceedings will now gradually resume and be examined under the clarified practice.

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