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14 May 2020

European Patent Office, Enlarged Board of Appeal, G 3/19, opinion of May 14, 2020, reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

Overruling its previous decisions Tomatoes II (G 2/12) and Broccoli II (G 2/13) issued in 2015, the Enlarged Board of Appeal (EBA) holds that plants and animals exclusively obtained by essentially biological processes are not patentable.

In reaction to the case law of the Boards of Appeal, the Administrative Council had adopted Rule 28(2) EPC stipulating that European patents are not to be granted in respect of plants and animals exclusively obtained by essentially biological processes. In T 1063/18, Technical Board 3.3.04 concluded that Rule 28(2) EPC could not be interpreted in such a way that it was not in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal. This prompted the President of the EPO to refer a point of law to the EBA arguing that Art. 53(b) EPC had to be interpreted in the light of Rule 28(2) EPC as amended.

Whereas the EBA expressly confirms the conclusions in Tomatoes II and Broccoli II, as well as its earlier decisions concerning the patentability of plant and animal inventions, it observes that G2/12 and G 2/13 have not settled the meaning of Art. 53(b) EPC once and for all because the meaning of a provision may change or evolve over time. As to the prevailing force of the Convention invoked in T 1063/18, the EBA states that the wording of Art. 53(b) EPC does not rule out the exception to patentability as provided for in Rule 28(2) EPC.
The EBA has rephrased the questions referred by the President of the EPO and answers them as follows:

Taking into account developments after decisions G 2/12 and G 2/13 of the Enlarged Board of Appeal,

the exception to patentability of essentially biological processes for the production of plants or animals in Art. 53(b) EPC has a negative effect on the allowability of product claims and product-by-process claims directed to plants, plant material and animals if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process.

This negative effect does not apply to European patents granted before 1 July 2017 and European patent applications which were filed before that date and are still pending.

A copy of the opinion can be read here.

A copy of the press release on the opinion can be read here.