PATENTS: U-turn : the Enlarged Board of Appeal finally excludes patentability of products obtained by natural breeding.


The Enlarged Board of Appeal, the highest judicial authority under European patent law, issued its decision in case G 3/19 and concluded that plant and animals exclusively obtained by essentially biological processes (such as breeding) are not patentable.

The opinion reverses previous decisions G 2/12 and G 2/13, which had held that the patentability exclusion of essentially biological processes did not extend to products obtained by such processes. In this very political issue, Rule 28 of the EPC had been amended after decisions G 2/12 and G 2/13 in order to prohibit patent protection for such inventions. However, in decision T 1063/18, board 3.3.04 of the European Patent Office held that the amended Rule 28 was incompatible with Art. 53(b) of the EPC.

Upon referral of the question by the president of the EPO, the Enlarged Board of Appeal held that a particular interpretation of the law is never set in stone because the meaning of a provision can change over time. The circumstances of the adoption of the new Rule 28 EPC as well as the legislative developments in the contracting states allow and even call for a dynamic interpretation of Art. 53(b) EPC. By adopting such a dynamic interpretation, the Enlarged Board abandoned its earlier interpretation of Art. 53(b) EPC in decisions G 2/12 and G 2/13.

This new interpretation is not retroactive. It does not apply to patents granted before July 1, 2017 (i.e. entry in force of the new Rule 28 EPC) or to pending applications filed before that date, thereby ensuring legal certainty of patent owners and applicants.

Stijn Lagaert - European and Belgian Patent Attorney
François Lefevre - Patent Engineer - PhD in Biochemistry & Molecular Biology



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