No longer a European patent for plants or animals exclusively obtained by an essentially biological process
As we discussed in our blog of 19 December 2016, there has been a long debate about patentability of plants/animals under the EPC.
The final (?) chapter may now be closed: the Administrative Council took a decision to amend the relevant Regulations in order to exclude from patentability plants and animals exclusively obtained by an essentially biological breeding process. This ends the option allowed by the Enlarged Board in G2/12 and G 2/13. The new rule enters in force almost immediately on 1 July 2017.
The key change to the rules is to introduce a new paragraph to R.28 (the current content being moved to R.28(1)):
R.28(2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.
To make sure that R.27(b) cannot be used as an escape, this rule has been made subject to R.28(2):
R.27 Biotechnological invention shall also be patentable if they concern:
(a) ...
(b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;
(c) ...
The full text of the press release of the EPO can be found here and is reproduced below.