The Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) today issued opinion G 3/19 (an opinion rather than a decision since the case was a referral by the President of the EPO and did not involve a pending appeal).
This opinion concludes that plants and animals exclusively obtained by essentially biological processes are not patentable.
This goes against previous decisions G 2/12 and G 2/13 in which it was concluded that the non‑patentability of essentially biological processes for the production of plants or animals under Article 53(b) EPC did not extend to products that are exclusively obtained by means of an essentially biological process.
However, crucially these appeals were decided before Rule 28(2) EPC came into force, which stated that European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.
Since then, Technical Board of Appeal decision T 1063/18, which we reported on in an earlier blog post (http://techinsights.dentons.com/post/102f6vm/appeal-decision-clears-the-way-for-plant-patents), held that new Rule 28(2) EPC had no impact and instead followed the earlier G 2/12 and G 2/13 decisions.
This relatively unclear position appears to have now finally been decided in this Enlarged Board of Appeal opinion, with the conclusion that such plants and animals exclusively obtained by essentially biological processes are not patentable.
An interesting side note is a comment from the EBoA that they "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". It will be interesting to see whether this has an impact on other areas of the law.
While this is undoubtedly disappointing news for affected businesses, it is not all bad news. To ensure legal certainty the EBoA ruled that this new interpretation is not retroactive and therefore has no effect on European patents granted before 1 July 2017 or on pending applications filed before this date.
The Enlarged Board of Appeal of the European Patent Office 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.