The rules keep changing over whether plants or plant products obtained by means of an essentially biological process are patentable in Europe.
Under Article 53(b) EPC (and Article 4 Biotech Directive), European patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants. Originally, this was interpreted to extend to plants and plant products obtained by means of an essentially biological process.
This was challenged in Broccoli/Tomatoes I ( G 0002/07 & G 0001/08) and Broccoli/Tomatoes II ( G 0002/12 & G 0002/13), following which, it was allowable to have a product claim directed to plants or plant material such as a fruit, even though the plant or plant material might be obtained by an essentially biological process, which is not patentable.
The European Commission considered the issue ( 2016/C 411/03) and took the view that the EU legislator’s intention when adopting the Biotech Directive was to exclude from patentability products (plants and plant parts) that are obtained by means of essentially biological processes.
The Administrative Council of the EPO then introduced Rule 28(2) to modify Article 53(b) EPC. Rule 28(2) states that European patents shall not be granted in respect of plants exclusively obtained by means of an essentially biological process.
Recently, the Technical Board of Appeal decided that Rule 28(2) is in conflict with Article 53(b) EPC and therefore, in accordance with Article 164(2) EPC, the provisions of the Convention prevail. Accordingly, Rule 28(2) is void.
This means that European patents can again be granted in respect of plants exclusively obtained by means of an essentially biological process. The question now is: how long will it last?
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