EU: Plants obtained by biological processes not patentable

The Commission clarifies that plants obtained by essentially biological processes should not be patentable under EU law.

ESA welcomes and very much appreciates the Commission’s clarification that it was not the intention of the EU legislator to provide for patent protection for products (plants and plant parts) that are obtained by essentially biological processes.

On November 3, 2016 the Commission adopted a clarifying notice on certain articles of Directive 98/44. In particular, the notice looks at Articles 4, 12 and 13 of the Directive. Regarding Article 4, the Commission recalls that the Enlarged Board of Appeal of the European Patent Office adopted a decision in the so-called ‘Broccoli’ case (as well as the similar ‘Tomato’ case) on 25 March 2015, in which it stated that patents may be granted for plants that are obtained by essentially biological processes such as classical crossing and selection. The Commission notes however that the decision of the EPO’s Enlarged Board of Appeal is based on an interpretation of the European Patent Convention and that an analysis and interpretation of the EU Directive 98/44 may lead to a different interpretation.

“From the legislative history of the Directive the Commission concludes that the intention of the legislator was to exclude products of essentially biological processes from patentability, which confirms the position ESA has been defending since years, including in the Expert Group of the Commission", says G. von Essen, ESA’s Secretary General. “This is a very important step for the European seed industry in the direction of re-establishing the balance between the two IP systems that are available for breeders to use to protect their inventions, patents on the one hand and plant breeders’ rights on the other.” – von Essen continues.

Regarding the other two articles, 12 and 13, the Commission enters into less details. On Article 12 the notice explains the practical difficulties in applying the Directive’s provisions and concludes that further work may be required to reach a meaningful clarification. As to Article 13, the Commission states that the provision is rather self-explanatory and should be understood as providing for a balanced and sufficient accessibility to the deposit.

Formally the EPO is not bound to EU legislation and interpretation. The EU Directive 98/44 has however been incorporated in the Implementing Regulations of the European Patent Convention. The practical impact of the Commission’s clarifying notice will largely depend on its uptake by the European Patent Office as the body deciding on patent applications. "ESA therefore calls upon the EPO to follow the Commission’s interpretation in its granting practices with regard to pending as well as newly incoming patent applications concerning products obtained by essentially biological processes," concludes G. von Essen.

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