On 14 May 2020, the Enlarged Board of Appeal of the European Patent Office declared that plants obtained by essentially biological processes are not patentable. Euroseeds welcomes this landmark opinion that finally clarifies the principal boundaries and limits of patentability for plant breeding.
In its opinion, the Enlarged Board came back on a previous decision in case G 2/12 but now adopted a so-called “dynamic interpretation” of Article 53(b) of the European Patent Convention allowing it to take account of developments that took place since the adoption of that decision. In consequence of this new dynamic approach, the Enlarged Board now departs from its previous view that also products resulting from essentially biological processes (such as crossing and selection) could still be patentable. It now specifically considered the interpretative notice issued by the European Commission in 2016 (regarding the interpretation of the EU Biotech Directive 98/44), the adoption of Rule 28(2) by the Administrative Council of the EPO in 2017, and the various changes a number of EPC countries made to their national patent laws to explicitly exclude products obtained by essentially biological processes from patentability. It is specifically before this background that the Enlarged Board, while confirming its previous case law in cases G 1/98, G 2/07, G 1/08 and G 2/12, concluded that Rule 28(2) provides for the final interpretation of Article 53(b).
“This is a true landmark decision for plant breeding. It finally provides the legal clarification on a matter that has been disputed for years and caused much uncertainty for breeders in their daily work” – states Garlich von Essen, Secretary General of Euroseeds. “We are glad that the Enlarged Board provided this clarification in such a timely manner – and we are hopeful that the application of Rule 28(2) will now resume very shortly.”
However, the Enlarged Board also concluded that in order to safeguard legal certainty, its new interpretation has no retroactive effect, thus only applies to applications and grants after 1 July 2017, the date of entry into force of Rule 28(2).
“As regards the non-retroactive application of the Rule, Euroseeds of course understands the need for legal certainty” von Essen acknowledges; “We will however need to wait and see how national jurisdictions will now view the validity of those patents granted or applied for before the entry into force of Rule 28(2).