European Patent Office Disallows Patents for Plants and Animals Obtained from Essentially Biological Processes

Starting on July 1, 2017, plants and animals obtained from essentially biological processes will no longer be patentable before the European Patent Office (EPO). This decision by the Administrative Council of the EPO applies to European patent applications filed on or after July 1, 2017, as well as to European patent applications and European patents pending at that time. (See EPO’s News Release here.)

Previously, the decisions G 2/12 and G 2/13 of the Enlarged Board of Appeal (EBA) of the EPO ruled that essentially biological processes for the production of plants and animals were excluded from patentability, while the plants and animals obtained by such processes were not excluded from patentability (previously reported in E-TIPS® Newsletter here). However, the EPO subsequently stayed all proceedings in examination and opposition cases in November 2016 after the release of an Interpretive Notice from the European Commission stating that the legislator´s intent was to exclude from patentability also plants and animals obtained by essentially biological processes.

In Canada, the Canadian Patent Office takes the position that while “lower life forms” such as a single cells, cell clusters (for example, molds and yeasts) are patentable, “higher life forms” such as plants and animals are not. Plant varieties that are distinct, uniform and stable may instead be protected under the Plant Breeders’ Rights Act administered by the Canadian Food Inspection Agency.  Further, in Canada, when determining whether a process to produce a higher life form is a patentable subject matter, an important consideration is the degree of human intervention embodied in the claimed process.  A process which occurs essentially according to nature, with no significant human intervention (for example, solely by traditional cross-breeding techniques), is not patentable.  However, a process that is a result of both human intervention and the laws of nature is patentable where at least one step of human intervention is an essential element of the claim.

Further commentary is available here.

Summary By: Robert Dewald