2018-12-07:
On December 5, 2018, a Technical Board of Appeal of the European Patent Office (EPO) surprisingly ruled that the recent amendment to R.28(2) EPC to exclude products obtained by essentially biological processes from patentability is void. This has again opened up for possibilities for the agritech industry to protect their inventions within this field, even though there are other legal hurdles for these types of inventions.
This is yet another event in the never-ending story regarding the patentability of plant products originally finding its legal basis in the Biotech Directive (Directive 98/44/EC), implemented into the EPC. Previously, decisions G2/12 and G2/13 (follow-ups to decisions G1/07 and G1/08) of the Enlarged Board of Appeal (EBoA) of the EPO had already confirmed that claims directed to plants or plant products produced by essentially biological processes should be considered patentable. This was later contradicted by the Administrative Council’s amendment of R.28(2) EPC in view of a notice from the European Commission. Now, a Technical Board of Appeal has come to the conclusion that amended R.28(2) EPC is incompatible with Article 53(b) as previously interpreted by the EBoA and is therefore void. The case in question is T 1063/18, relating to Syngenta Participations patent application EP2753168. This is indeed a welcome event for the industry.
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