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Clarification on patentability of plants and animals at European Patent Office?

The European Patent Office's Enlarged Board of Appeal, decided that "dynamic interpretation" on legal issues is possible and has issued a ruling that reverses its previous position and significantly changes the patentability of plants, plant materials and animals at the European Patent Office.

The Enlarged Board of Appeal, the highest level of judicial authority, issued its opinion G 3/19 on 14 May 2020 on questions related to the patentability of plants and animals which is governed by A53(b) EPC.

The opinion, triggered by a referral from the President of the EPO in April 2019, concludes that plants and animals exclusively obtained by means of an essentially biological process are to be excluded from patentability under the European Patent Convention.

Unusually, this is a decision that concerns an issue that the Enlarged Board of Appeal has decided upon before and this new decision marks a change in law over what has been decided previously. 

In justifying the change in its stance, the Enlarged Board found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This meant, in the Board's opinion, that the prior decisions on the subject  - G 2/12 and G 2/13 - did not settle the meaning of Article 53(b) EPC once and for all.

Taking account of the Administrative Council's decision to introduce a new Rule on the subject (Rule 28(2) EPC), the preparatory work on this provision and the circumstances of its adoption, as well as legislative developments in the EPC contracting states, the Enlarged Board concluded that new Rule 28(2) EPC allowed and indeed called for a dynamic interpretation of Article 53(b) EPC.

In adopting this "dynamic interpretation", the Enlarged Board abandoned its earlier interpretation of Article 53(b) EPC in decisions G 2/12 and G 2/13. It held that, after the introduction of new Rule 28(2) EPC, Article 53(b) EPC was to be interpreted to exclude from patentability plants, plant material or animals, if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process.

In order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board ruled that the new interpretation of Article 53(b) EPC given in G 3/19 had no retroactive effect on European patents containing such claims which were granted before 1 July 2017, or on pending European patent applications seeking protection for such claims which were filed before that date.

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