Europe 04 Jun 2020

Can plants and animals be patented? New decision from the EPO

On May 14, 2020, the Enlarged Board of Appeal (EBA) at the European Patent Office (EPO) issued Decision G3/19, otherwise known as “Pepper”, concerning patentability of plants and animals. The decision relates to Syngenta Participations AG’s patent application EP12756468.0 for patenting new plants and fruits with better nutritional value. EBA rejected the patent application and thus went against two of their previous decisions.

The new decision means that plants and animals obtained via a biological process are not patentable under the European Patent Convention (EPC). Article 53(b) of the EPC states that plant and animal variants or essentially biological processes for the production of plants and animals cannot be patented, but that is not to apply to microbiological processes or products obtained from such processes.

In two previous decisions, G2/12 “Tomato II and G2/13 “Broccoli II, the EBA held that plants themselves were not excluded from patentability, even though they were obtained from an essentially biological process. Following these two G decisions, the Administrative Council of the EPO introduced the new Rule 28(2) EPC which provides that patents should not be granted to plants or animals obtained by means exclusively through essentially biological processes, which was in conflict with the previous Tomato II / Broccoli II decisions.

Syngenta’s application was rejected by the EPO’s Technical Board of Appeal based on the A53(b) EPC, but the Board of Appeal pointed out that Rule 28(2) EPC was in contradiction with Article 53(b). The President of the EPO referred this issue to the EBA, which reinterpreted Article 53(b). In contradiction to the Tomato II/Broccoli II decisions, the EBA now concluded that plants, plant materials and animals are excluded from patentability, whether the product to be protected is obtained via an essential biological process or if the process for which protection is filed defines features involving an essentially biological process.

This new interpretation of Article 53(b) EPC will not have retroactive effect on European patents granted before 1 July 2017 or on European patent application filed before that date.

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