No to Peppers – but you can keep Tomatoes and Broccoli

Yesterday, the Enlarged Board of Appeal of the European Patent Office issued opinion G 3/19 (Pepper) and in conclusion, plants and animals exclusively obtained by essentially biological processes are no longer patentable.

In a much-awaited decision, the Enlarged Board of Appeal of the European Patent Office yesterday settled several issues concerning both lawmaking and interpretation of the law. It adopted a dynamic interpretation of the exception to patentability under Article 53(b) of the European Patent Convention (EPC) and held that the non-patentability of essentially biological processes for the production of plants or animals also extends to plant or animal products that are exclusively obtained by means of an essentially biological process, thus closing a short-lived and highly controversial window of opportunity for patenting these products. A decision that will be applauded by most in the Plant-Breeders’ Community.

The Enlarged Board held the referral by the President of the European Patent Office to be admissible. The referral was made under Article 112(1)(b) EPC and concerned the interpretation of Article 53(b) EPC in view of legal and other developments occurring after decisions G 2/12 (Tomatoes II) and G 2/13 (Broccoli II), and in particular in view of new Rule 28(2) EPC in light of decision T 1063/18 which held that new Rule 28(2) EPC had no impact on the interpretation of Article 53(b) EPC.

It found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. Thus, decisions G 2/12 and G 2/13 did not settle the meaning of Article 53(b) EPC once and for all.

In summary, after the introduction of new Rule 28(2) EPC, Article 53(b) EPC is to be interpreted to exclude from patentability plants, plant material or 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.

Still, in order to ensure legal certainty and to protect the legitimate interests of patent proprietors and applicants, the Enlarged Board further ruled that the new interpretation of Article 53(b) EPC given in G 3/19 had no retroactive effect on European patents containing such claims which were granted before 1 July 2017, or on pending European patent applications seeking protection for such claims which were filed before that date. In practical terms, if priority was claimed, the priority date is the date deciding if a pending application is exempt from Rule 28(2) EPC (point XXIX of G 3/19).

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The opinion

The non-legally binding press-release