20 May 2020

Enlarged Board of Appeal issues decision on plant patents

In this article by JUVE Patent, Mathys & Squire associate Alexander Robinson provides his comments regarding the Enlarged Board of Appeal ruling that plants and animals obtained from essentially biological processes are not patentable – contrary to earlier decisions by the European Patent Office (EPO).

The past decade has seen a huge battle on the patentability of plants. Encompassing tomato, broccoli and now chilli pepper, varying decisions have led to complex ethical debates. But now a conclusion is within reach. In case G 3/19, the Enlarged Board of Appeal at the European Patent Office has decided that plants, or animals, obtained via an ‘essentially biological process’ are not patentable. This upholds Article 53(b) EPC: “European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof.”

The board describes the decision as a “dynamic interpretation of the exception to patentability.”

Alex Robinson, associate at IP attorney firm Mathys & Squire, says “The decision represents a complete reversal of a policy that the same body put in place only five years ago, and will come as a major blow to the agri-tech industry. This decision was widely unexpected and will be seen as politically controversial.”

“The decision should, for the most part, not affect the availability of patents relating to genetically modified organisms. Some comfort for agri-tech is also provided in that the decision will not affect all patents which were granted or filed under the previous rules.” With biotechnology patents increasingly encompassing high-end technology, this exception is especially important.

Click here to read the full JUVE Patent article, published in May 2020.