The European Patent Office (EPO) limits the patentability of plants and animals

The Administrative Council of the European Patent Organisation has decided on June 29, 2017 to amend the Regulations of the European Patent Convention to exclude plants and animals from patentability with effect from July 1, 2017, if they can exclusively be obtained by an essentially biological process. With this, the EPO follows — even though not legally bound — a notice of the European Commission, which has interpreted the European Biotech Directive (Directive 98/44/EU), which regulates among other things the patentability of plants and animals, accordingly. Some European national states, among them Germany, have already amended their national patent laws in the same way in recent years. Notably, this decision of the Administrative Council stands in grave contrast to the decision of the Enlarged Board of Appeal of the EPO, which still in the year 2015, in the decisions G2/12 and G2/13 (Tomato II and Broccoli II) had decided that the exclusion of essentially biological processes does not spill over to plants and animals that are produced by such a process. Thus, the EPO now follows a much more restrictive practice, which may well considerably limit options for applicants, in particular in the agricultural field.