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1. On 3 November 2016 the European Commission adopted a notice on certain articles of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions[ 1 ] (“the Directive”). The notice sets out the Commission’s view on the intention of the EU legislator when adopting the Directive. With regard to the patentability of plants and animals obtained by means of essentially biological processes, the Commission takes the view that in accordance with the EU legislator’s intention such plants and animals are not patentable under the Directive.
2. In 1999 the member states of the European Patent Organisation decided to implement the Directive by amending the Implementing Regulations to the EPC. The aim was to bring the EPC into line with the terms of the Directive, not only to reflect the obligations of EU member states belonging to the Organisation but above all to comply with the requirement for uniformity in harmonised European patent law. [ 2 ] In accordance with Rule 26(1) EPC, examining and opposition divisions use the Directive as a supplementary means of interpretation when examining European patent applications and European patents for compliance with the relevant provisions of the EPC. Judgments of the EU Court of Justice on the interpretation of the Directive are taken into account as persuasive (see Guidelines for Examination G-II, 5.2 and 5.3).
3. The effect of the Commission Notice for the EPO’s examination practice including any necessary follow-up measures is currently under discussion with the representatives of the member states of the European Patent Organisation.
4. The President of the EPO has decided that, in view of the potential impact of the Commission Notice, all proceedings before EPO examining and opposition divisions in which the decision depends entirely on the patentability of a plant or animal obtained by an essentially biological process will be stayed ex officio. This concerns cases in which the subject-matter of the invention is a plant or animal obtained by an essentially biological process for the production of plants or animals. Search proceedings will not be affected.
5. If proceedings are stayed, the examining or opposition division concerned will inform the parties accordingly. At the same time, it will withdraw any communications setting them time limits to react, and will despatch no further such communications until the resumption of proceedings.
6. The present notice is immediately applicable.
[ 1 ] C (2016) 6997 final of 3 November 2016, Official Journal of the EU C 411/3 of 8 November 2016.
[ 2 ] See Administrative Council document CA/7/99 of 4 May 1999 and the notice dated 1 July 1999 concerning the amendment of the Implementing Regulations to the European Patent Convention, OJ EPO 1999, 573.