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Plant breeders have experienced several years of uncertainty regarding the patentability of their plants, and today they find themselves in a new pickle.
In 2010, the Enlarged Board of Appeal of the EPO (European Patent Office) decided that all patent claims on processes of producing plants should be exempted from patent protection if they were based on step(s) of sexual crossing of plants. According to the EPO such methods were to be regarded as “essentially biological processes” and were therefore found to be excluded from patentability, unless the processes included a step wherein genetic material was actively transferred into the plant genome. Yet, it was still unclear whether plants produced (entirely) by “essentially biological processes” were part of the exception.
In 2015, the Enlarged Board of Appeal decided that plants obtained by an ”essentially biological process” were in fact patentable – at least in principle.
In December 2016, the EPO made a new announcement regarding the problem, which states:
“All proceedings before EPO examining and opposition divisions in which the decision depends entirely on the patentability of a plant or animal obtained by an essentially biological process will be stayed ex officio. This concerns cases in which the subject-matter of the invention is a plant or animal obtained by an essentially biological process for the production of plants or animals”.
The announcement is based on a notice from the European Commission, which states that the Biotech Directive (an EU directive from 1998 on the legal protection of biotechnological inventions) was intended to exclude patenting of plants obtained by “essentially biological processes”.
Therefore, the Biotech Directive points in one direction and the EPO in another direction when it comes to patentability of plants obtained by “essentially biological processes”.
This means that plant breeders will have to wait and see how the EPO chooses to deal with this conflict.
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We will continue to monitor the situation and keep you updated here on the blog.