By Lawrence Hoffman
In 2015, the Enlarged Board of Appeals of the EPO ruled that plants and plant parts are patent eligible even if they are produced by essentially biological processes which are not patent eligible. The opponents took up arms, and in November 2016, the European Commission (the EU administrative body) issued a Notice in which it interpreted the EU Biotech Directive to bar such patents. The EPO is not governed by EU law but has incorporated the Biotech Directive into its Rules of Practice.
Based on the Commission’s interpretation, the EPO President suspended consideration of applications and oppositions involving claims to such plants and plant products. Further, several EU countries amended their national patent laws to exclude such subject matter from patent eligibility.
Despite the fact that the EPC as interpreted by the Enlarged Board, and not EU law, governs practice in the EPO, in June 2017, the EPO Administrative Council adopted a new Rule 28(2), effective 1 July 2017, which states that plants or animals exclusively obtained by means of an essentially biological process are not patent eligible. The 2016 suspension of proceedings has been terminated, but the EPO has placed itself in direct conflict with the Enlarged Board’s interpretation of the law (i.e., Art. 53(b) of the EPC) which governs its practice. The opponents of plant patents appear to have won a battle in a longstanding war, but the war is far from over.