Plants developed by biological processes may not be the subject of patents

The Administrative Council of the European Patent Office has now made clear that traits in plants that have been developed as the result of essentially biological processes (e.g. conventional breeding techniques) may not be the subject of patents.

The proposal from the EPO took account of a Notice of the European Commission from November 2016 related to certain articles in the European Union (EU) Directive on biotechnological inventions (98/44/EC).

This Directive was implemented in the EPO’s legal framework in 1999. The Directive excludes essentially biological processes from patentability but does not provide for a clear exclusion for plants or animals obtained from such processes.

However, in its Notice the Commission clarified that it was the European legislator’s intention to exclude not only processes but also products obtained by such processes.

Based on a proposal submitted by the Office, the Administrative Council of the EPO decided on 29 June 2017 to amend Rules 27 and 28 EPC to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process.

The decision of the Administrative Council entered into force on 1 July 2017. 

See http://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20170704.html

Plants for Europe's Graham Spencer said: "This has been coming down the track for a while, so should surprise nobody.

"It has no impact on Plant Variety Rights. PVR protects an individual variety, whereas Patent is used to protect a particular plant trait which may be found in numerous varieties."

AIPH Novelty Protection advisor Mia Buma said: "We are pleased to see that EPO has followed the lead of the European Commission on this subject and we are hopeful that regulatory authorities in other parts of the world will also make the same decision."

AIPH Secretary General Tim Briercliffe added: "The ‘breeders exemption’ within PBR has served this industry well but we frequently find it is under threat through issues like patenting as well as in proposed legislation. We continue to monitor this situation and argue the case for growers when required."


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