EPO clarifies practice in the area of plant and animal patents

29 June 2017

On a proposal of the European Patent Office its Administrative
Council took a decision to amend the relevant Regulations in order to exclude
from patentability plants and animals exclusively obtained by an essentially
biological breeding process.

The proposal from the EPO took account of a Notice of the European Commission
from November 2016 related to certain articles in the EU Directive on
biotechnological inventions (98/44/EC).

This Directive was implemented in the EPO’s legal framework in 1999. The Directive
excludes essentially biological processes from patentability but does not
provide for a clear exclusion for plants or animals obtained from such
processes. However, in its Notice the Commission clarified that it was the
European legislator’s intention to exclude not only processes but also products
obtained by such processes.

The EPO’s proposal adopted by its Administrative Council today almost
unanimously safeguards uniformity in harmonised European patent law. It
contains an important precision to patenting practice at the EPO, providing
more clarity and legal certainty for users of the European patent system.

The new provisions will apply with immediate effect starting on 1 July 2017.
Proceedings in examination and opposition cases concerning plants or animals
obtained by an essentially biological process have been stayed since last
November following the Commission’s Notice. These cases will now be gradually
resumed and be examined according to the clarified practice.

Further information