Update on plant and animal patents at the EPO

Earlier this year we reported that the European Patent Office (EPO) had stayed all examination and opposition proceedings relating to patents and patent applications in which the decision depended on the patentability of a plant or animal obtained by an essentially biological process. This measure was taken following the release of a Notice by the European Commission stating that plants and animals derived from essentially biological processes should not, in its view, be considered patentable.

The Commission’s Notice contradicted the previous practice of the EPO which had been blocking patents directed towards essentially biological processes for the production of plants or animals but allowing claims to the plants or animals themselves which were derived from those processes. The EPO’s practice was based on a narrow interpretation of existing EU legislation regarding biotechnology.

The EPO’s Administrative Council has now amended the relevant EPO regulations such that plants and animals obtained exclusively by essentially biological processes will no longer be considered patentable, in line with the EU Commission’s Notice. While the EPO is not an EU body, the EPO has decided to continue to comply with EU law for the sake of harmonisation in patent law across the European continent.

Examination and opposition cases which were previously stayed will now be resumed and the new regulations will be applied. The EPO has stated that the changes will provide more clarity and legal certainty for users of the European patent system. However, the changes have no effect on national law and so it is unclear whether previously granted European patents, which claim plants or animals derived from essentially biological processes, will be upheld or invalidated by the national courts of EPO member states, particularly in those member states which do not belong to the EU and are therefore not subject to EU law.