Author: Hazel Ford Ph.D.
Editor: Martin D. Hyden
The EPO has clarified its approach to the patentability of plants and animals by making changes to its rules.
Article 53(b) EPC derives from an EU Directive (Article 4(1) of Directive 98/44 EC) and excludes from patentability “essentially biological processes for the production of plants or animals”. According to the EPO’s Enlarged Board of Appeal, this excludes from patentability any process that contains the steps of sexually crossing the whole genomes of plants and then selecting the desired progeny plants. However, the Enlarged Board concluded in decisions G 2/12 and G 2/13 that the exclusion only applies to process claims, and not to the plants that are produced by those processes. Until recently, the EPO had followed this practice during examination and in post-grant oppositions. Continue reading