28 May Patenting plants: European Patent Law is now dynamic
Contrary to earlier decisions, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has decided that plants or animals obtained via an ‘essentially biological process’ are no longer patentable. In this article, the expert team at Serjeants provides further details on the EBA’s recent verdict with regards to patenting plants and shares the potential future implications it may have on European Patent Law.
Enlarged Board of Appeal (EBA)
The EBA is the highest level of appeal at the EPO and is responsible for settling issues regarding the interpretation of European Patent Law. Once an issue had been determined by the EBA, it is considered settled and can only be altered by changing the European Patent Convention (EPC) itself.
Until recently, it was settled case law that it was possible in Europe to patent plants produced by essentially biological processes. Indeed, various attempts have been made over the years to register conventionally bred crops, such as tomatoes with reduced water content by Unilever and a novel pepper plant by Syngenta.
However, following increasing public criticism of the patenting of plants, with some arguing that patents hold back the development of new crops for smaller businesses, the Administrative Council (AC) of the EPO attempted to change the legal situation by amending the rules of the EPC. This move was widely considered as unlikely to be a success, as the AC has no power to amend the EPC itself; it would require a European council of IP ministers to make that change. It therefore came as no surprise when the suggested changes were refused, confirmed by two decisions of the EPO’s Board of Appeal.
The President of the EPO then referred the two decisions to the EBA, asking it to determine the final legal position on the patentability of plants. It was widely expected that the referral would be refused as unnecessary, with many people predicting that the EBA would find the appeal inadmissible – citing the lack of divergent case law to justify the referral.
Surprisingly, the EBA not only accepted the referral but also changed the law as a result. It ultimately decided that the meaning of a legal provision can now be reinterpreted or changed, stating: “A particular interpretation that has been given to a legal provision can never be considered to be taken as carved in stone, because the meaning of the provision may change or evolve over time.”
This means that the EBA felt able to over-rule the previous case law in line with the shift in attitude against the patentability of plants.
‘Dynamic interpretation’: future implications
The immediate consequence of this decision is that plants are no longer patentable in Europe. However, the longer-term consequences to European Patent Law could be particularly significant. We can no longer completely rely on previously decided issues from the EBA; it is now possible for the EBA to overrule itself and instead give a ‘dynamic interpretation’ of any provision if it thinks attitudes towards that provision have changed.
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