EPO envisions change of Implementing Regulations to halt plant patents

In response to the view of the European Commission that according to the EU Biotechnology Directive patents on plants obtained by essentially biological processes should be halted, EPO has proposed amending the EPC Implementing Regulations, brantsandpatents has learned.

The proposed amendments specifically concern rules 27 and 28 of the EPC Implementing Regulations, with the biggest amendment being present in Rule 28 EPC. The amendment serves to clarify the interpretation of Article 53(b) EPC and is necessary to align EPO's law and practice with the interpretation of the Directive and to safeguard uniformity and harmony in the European patent law.

The proposed amendment to Rule 28 reads:

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

The Administrative Council of the EPO will have its final say on the proposal during its meeting on 28 and 29 June in The Hague.

Upon approval, the envisaged date of entry into force of rule 28(2) EPC is 1 July 2017. The provisions give a more detailed interpretation of Article 53(b) EPC in line with Rule 26(1) EPC and the EU Biotechnology Directive and are thus applicable to European and international applications filed on or after the date of entry into force as well as to pending European patent applications and European patents. This corresponds to the approach taken in the framework of incorporating the EU Biotechnology Directive into the EPC in 1999.

The amendment will thus have a significant consequence for currently pending patent applications as well as previously grantd European patents, which subject relates to plants obtained by essentially biological processes.