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European Patent Office confirms patentability of plants

The European Patent Office has recently confirmed that plant products are not excluded from patentability.

This was the good news for plant biotech companies from the Enlarged Board in its decision of March 25th in the merged cases G 2/13 (Broccoli II) and G 2/12 (Tomatoes II). In particular, the Enlarged Board has clarified the impact of Article 53(b) of the European Patent Convention, which stipulates that patents are not granted for essentially biological processes for the production of plants. The Enlarged Board explained that this exclusion should not be read so broadly as to also exclude the plants obtained by such processes. These plants can be patented, according to the decision of the Enlarged Board, provided of course that they are novel and inventive just like any other invention.

The decision addresses the issue of patents on seeds – which has stirred some controversy in the last years – in a very thorough and strictly legal way. The Enlarged Board explains that arguments based on ethical, social and economic aspects fall outside its judicial decision-making powers, and that engaging in legislative policy is not its task. These remarks provide some assurance for applicants and patent proprietors that, also for controversial inventions, EPO decisions will be based on the legal framework.

A noteworthy point is that in both cases, the Enlarged Board had previously rejected the method claims of both the Broccoli patent and the Tomatoes patent in view of the exclusion of essentially biological processes of Article 53(b) EPC (decisions G 1/08 and G 2/07 of 2010). Each patent proprietor had thereafter restricted its patent to the corresponding product claims, which were now found unobjectionable. This confirms that the precise wording of the claims can often be critical before the EPO. In view of the very strict requirements for added subject matter, it seems important to ensure that phrases matching the now approved claim language are already present in the application as filed. The V.O. attorneys with expertise in patenting plant products can attend to this.

For more information, contact Frits Schut.

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