In a rather surprising move, the Enlarged Board of Appeal of the European Patent Office has denounced the possibility of obtaining a European Patent on plants and seeds that were conceived by means of essentially biological processes. By doing so, the EPO added a new chapter to this seemingly never ending saga that started with patents on Tomatoes and Broccoli.
It all started in 2015, when the Enlarged Board decided in decisions G2/12 and G2/13 that plants are not to be excluded from patentability, even if they are obtained by mere breeding and crossing.
In 2017, and after pressure from the European Commission, the EPO amended relevant Rules 27 and 28 EPC by explicitly excluding plants from patentability.
In December 2018, the Board of Appeal dropped a bombshell by denouncing the legitimacy of this amendment and ruled that decisions G2/12 and G2/13 prevailed over the amendments of the Rules. All proceedings relating to plant patents were immediately put on hold.
In order to put an end to the legal insecurity, the President of the EPO referred the matter back to the Enlarged Board of Appeal. The latter now agreed that plants obtained by means of essential biological processes are indeed excluded from patentability. However, the new interpretation of the law only applies to applications filed after 1 July 2017, and has no retroactive effect on European patents which were granted before 1 July 2017, or on pending European patent applications were filed before that date.
So are patents on plants allowed in Europe. The new answer to that question is currently set to NO, but… To be continued before the European Court of Justice?
The full decision of the Enlarged Board of Appeal can be read here.