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Patentability of products obtained by essentially biological processes in Europe

Autoren: Dr. Oliver Ladendorf, Dr. Evy Corbanie

Patent protection of plants and processes to produce plants have been a matter of extensive discussion in European patent practice. With its decisions in the proceedings with case numbers G 1/98, G 2/07, G 1/08, G 2/12 and G 2/13, the Enlarged Board of Appeal of the European Patent Office (EPO) provided its interpretation of different aspects of Article 53(b) of the European Patent Convention (EPC).

The conclusions reached by the Enlarged Board of Appeal are straightforward and provide a clear guidance as to how the exclusions from patentability defined in Article 53(b) EPC are to be understood in  proceedings before the EPO.

Nevertheless, an applicant for a patent directed to plants again faces uncertainty as to the fate of its innovation. This uncertainty arises in view of a Notice from the European Commission on the exclusion from patentability of products obtained by essentially biological processes dated November 8, 2016 and the subsequent ex officio staying of proceedings before the EPO where the claimed subject-matter is directed to such products.

This Notice and the EPO's reaction to it is the latest twist in the seemingly neverending story on patentability of biological products in Europe. […]

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