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20-07-2017 » Patentability of animals and plants exclusively obtained by an essentially biological process

The Regulations under the Convention on the Grant of European Patents have been amended at the level of Rules 27 and 28, which concern respectively "Patentable biotechnological inventions" and "Exceptions to patentability".

Rule 28 was amended by adding the following paragraph 2:

(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.

Rule 27 has consequently also been amended in point (b) (underlined):

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;

These changes are in line with the findings of the European Commission, which had considered in a notice published on 8 November 2016, that according to the EU legislator, plants and animals derived from essentially biological processes should not be considered patentable.

The EPO, which had previously ruled in favor of the patentability of products derived from essentially biological processes (G2/13 and G2/12), had suspended the procedures concerned by this type of invention following the Notice of the European Commission. The suspended procedures will now be able to resume taking into account the new Rules 27 and 28.

In this instance therefore, a change in European statute has overturned a trend in case law.

In France :

The Biodiversity Law of August 2016 had already amended the French Intellectual Property Code (Code de la Propriété Intellectuelle) by excluding from patentability products exclusively obtained by essentially biological processes (Article L611-19 3°bis).

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