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. 

Good news for seed and plant breeding companies ?

Following a report about the European Biotech Directive (EU 98/44), the European Commission has adopted three recommendations, including:
=> it was always the intention (of the Directive) to exclude the patentability of  plants, vegetables, fruits etc. that are obtained by biological processes.

The European Patent Office (EPO) came to the opposite conclusion in how the Directive was to be interpreted - see G2/12 and G2/13.

It is unclear how the EPO will react to this - recommendations of the European Commission are not legally binding on the EPO. However, these arguments will certainly be used in any future invalidation proceedings.