Plant variety rights

EPO – News rules relating to patentability of essentially biological processes

|Gert Würtenberger|

After the European Patent Office (EPO) decided in December 2016 to stay the proceedings in certain biotechnology cases as a reaction to the notice of the European Commission related to certain articles in the Directive (98/44/EC)  on the legal  protection of biotechnical inventions the Administrative Council of the EPO decided on 29 June 2017 to amend the Rules 27 and 28 EPC in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process based on a proposal made by the EPO. The amended rules now read as follows (amendments emphasized):

“Rule 27

Patentable biotechnological inventions

Biotechnological inventions shall also be patentable if they concern:

(a) biological material which is isolated from its natural environment or produced by means of a technical process even if it previously occurred in nature;

(b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;

(c) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.”


“Rule 28

Exceptions to patentability

(1) Under Article 53(a), European patents shall not be granted in respect of biotechnological inventions which, in particular, concern the following:

(a) processes for cloning human beings;

(b) processes for modifying the germ line genetic identity of human beings;

(c) uses of human embryos for industrial or commercial purposes;

(d) processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes.

(2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.”


In its decisions Broccoli II and Tomato II the enlarged Board of Appeal of the EPO decided that plants being the result of conventional breeding may, in principle, be patentable. This caused the European Commission to issue a notice in November 2016 related to certain articles in the EU Directive on Biotechnological Inventions. The Commission clarified that, when passing the Directive, it was the intention of the European legislator to exclude not only processes but also products obtained by such processes.

The result was that in an announcement of 24 November 2016 the EPO decided to stay all proceedings in examination and/or opposition cases in which the invention is a plant or animal obtained by an essentially biological process.

The new provisions concerning the patentability of plants and animals took effect on 1 July 2017. These are applied not only to European patent applications filed on or after 1 July, but also to European patent applications and European patents pending at that time.

Proceedings in examination and opposition cases concerning plants or animals obtained by an essentially biological process will now be resumed and examined according to the clarified practice.

Published on 21 Jul 2017