According to Dutch Minister, EPO is prepared to start legal proceedings on plant patents

During the general consultation in Parliament, the Minister of Agriculture, Mrs Schouten, responded to the decision of the Board of Appeal of the European Patent Office in T 1063/18. We blogged about this here and here before.

The decision regards the interpretation of Article 53 (b) EPC which forbids patents for 'essentially biological processes for the production of plants or animals' (essential biological processes for the production of plants or animals). According to Rule 28 (2) EPC this exception includes the plants or animals that are exclusively obtained by means of an essentially biological process (plants or animals exclusively obtained by means of an essential biological process).

In the surprising judgment T 1063/18, a Board of Appeal decided, among other things, that Rule 28 (2) is invalid. The consequence of this is that patents on plants exclusively obtained through an essential biological process are sometimes possible. An interpretative declaration from the European Commission was not taken into consideration because it does not have 'legal authority'.

The minister finds the ruling disappointing. According to Minister Schouten: "We believe that patents on classical plant breeding should not be possible. I support the interpretative declaration from the European Commission, which makes it clear that when the directive was drafted it was never the intention of the European legislator that products of traditional breeding are patentable. "

The minister is going to ask whether other member states want to give their opinion on the ruling as well, both within the EU and within the EPO. In addition, there is the hope that the President of the EPO will initiate proceedings on this issue at the EPO's Enlarged Chamber of Appeal. "The EPO has already indicated its willingness to do so," according to the minister.

In addition, the Court of Justice of the European Union could be asked via a preliminary question to comment on the validity of the interpretative declaration.

Picture by Anthony (InspiredImages) via PixaBay under the Pixabay License. 

EPO publishes annual report for 2018

EPO has published figures on European patents and patent applications in 2018 (pdf). The Netherlands stands out in a few places. In the list 'Ratio per million inhabitants based on European patent applications', the Netherlands is in second place, immediately after Switzerland. In the Netherlands, 416 applications were submitted per million inhabitants. In absolute numbers, the Netherlands is in eighth place, after the US, Germany, Japan, France, China, Switzerland and Korea.

The fact that Switzerland and the Netherlands are doing relatively well does not necessarily mean that a lot of innovative research is taking place in those countries. There is no obligation that an application for a European patent be filed from the country where the research was done.

The company with the most submissions was Siemens, followed by Huawei, Samsung, LG, United Technologies and Royal Philips. Large companies together accounted for 71% of applications.

Most patent applications were for medical technology, followed by digital communication and computer technology.