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Volte-face: EPO’s G3/19 decision

In this article for Intellectual Property Magazine, Mathys & Squire associate Alexander Robinson analyses the implications of the EPO’s high-profile plant and animal ruling reversal.

In a widely unexpected decision (opinion G3/19), which represents a complete reversal of a position adopted only five years ago, the European Patent Office’s (EPO) highest judicial instance, the Enlarged Board of Appeal (EBoA), ruled that plants and animals exclusively obtained by means of “essentially biological processes” cannot be patented.

At the root of the dispute leading to G3/19 is the fact that Article 53(b) of the European Patent Convention (EPC) forbids the patenting of “essentially biological processes for the production of plants or animals”. In its so-called Broccoli/Tomatoes II (G2/12 & G2/13) decisions in 2010, the EBoA clarified that this did not preclude claims to plants or plant material which are obtained through such processes.

This article was published by Intellectual Property Magazine in July 2020 – to read the full version, please click here (subscription required).

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