In the last edition of Inside IP we reported that the Enlarged Board of Appeal of the European Patent Office (EPO) had confirmed that plants or plant material may be patentable per se, even if the only method available at the filing date of the patent application for generating the claimed subject matter was an essentially biological process (which would itself by excluded from patentability).

This decision was considered to be consistent with the EU Biotech Directive and the European Patent Convention (EPC), which exclude plant varieties from patent protection, as well as what are essentially biological processes for the production of plants.

However, the EPO decision was swiftly followed by a notice issued by the EU Commission expressing the view that “the EU legislator’s intention when adopting Directive 98/44/EC was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes”. This left the situation unclear as the EU Commission’s notice was not legally binding on the EPO and it remains the job of the courts and the EPO’s Boards to interpret the law.

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