Board of Appeal decides that new Rule 28(2) EPC is in conflict with Article 53(b) EPC

In a much-noticed decision, a Board of Appeal of the European Patent Office (EPO) has decided last week at oral proceedings in case T 1063/18 that new Rule 28(2) EPC is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13 (Tomato II and Broccoli II). Rule 28(2) had only been recently introduced by the Administrative Council of the EPO, following a recommendation of the European Commission, and excludes plants and animals from patentability that are exclusively obtained by means of an essentially biological process. In stark contrast to the wording of Rule 28(2) EPC, the Board’s ruling in case T 1063/18 once again opens the door for product protection for plants and animals that are exclusively obtained by means of an essentially biological process. The written decision is expected to issue in the next few months.