ACCORDING TO G3/19, PLANTS AND ANIMALS OBTAINED BY ESSENTIALLY BIOLOGICAL PROCESSES ARE NOT PATENTABLE

The Enlarged Board of Appeal (EBA), the highest instance of the European Patent Office (EPO), yesterday issued its opinion, G3/19, on a point of law relating to the patenting of plants and animals obtained by essentially biologic processes referred by the President of the EPO (see here for more background).  In its opinion, the EBA confirmed that the exception to patentability of essentially biological processes for the production of plants or animals in Article 53(b) EPC also extends to products obtained by such essentially biological processes. The above exclusion does not however apply to European patents granted before 1 July 2017 nor to pending European patent applications filed before that date. The EPO’s initial comments are here.

G3/19 effectively reverses the EBA’s previous position in Broccoli II (G2/13) and Tomato II(G2/12) in which it was confirmed that the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC was a process exclusion which did not extend to products (plants and plant materials) resulting from an essentially biological process.  

We’ll be taking a deeper look at the decision and will provide further insight shortly.

This is for general information and should not be taken as legal advice. If you have any questions on inventions relating to plants, please contact Meeta Mistry.