The patent limbo is over for the plant breeders – or is it?

Header image: Josch13/

In a previous blogpost, we summarized the uncertain situation plant breeders were left in by the European Patent Office (EPO).

In November 2016, the EPO stayed all proceedings before its examination and opposition divisions in respect to patent applications and granted patents pertaining plants or animals obtained by an “essentially biological process”. The reason was that the EPO in 2015 had allowed patents on plants obtained by an “essentially biological process”. However, this practice appeared to be in conflict with the Biotech Directive, an EU directive from 1998 on the legal protection of biotechnological inventions, as well as with national patent laws in several EU countries, and the EPO therefore decided to halter the proceedings.

In July 2017, the waiting period was finally over as the EPO announced that the haltered proceedings were resumed. Meanwhile, it was announced that the Administrative Counsel of the EPO had decided to amend Rule 27 and 28 of the European Patent Convention, the legal system according to which European patents are granted, to exclude plants and animals obtained by an “essentially biological process” from patentability. The decision entered into force on 1 July 2017.

Despite the long-awaited decision, it is still uncertain e.g. to what extent patents on so-called “native traits” can be regarded as non-technical. Also, the legislation surrounding the patents will have to develop based on the recent legislative changes – for example – how will the interplay between the so-called breeders exemption and patents be in the future? The impact of the new legislative changes will appear over time.

We will continue to monitor the developments in this area closely – therefore, Plougmann Vingtoft will attend the 8th International Conference on “Intellectual Property Protection for Plant Innovation 2017” in Amsterdam on 30.11-01.12.2017.

Read the full announcement from the Official Journal here.

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