The Administrative Council of the European Patent Office (EPO) has just settled the controversy caused by the decisions of the EPO Enlarged Board of Appeal G 2/12 and G 2/13, known as Tomatoes II and Broccoli II, respectively.
These decisions allowed the patentability of plants and animals obtained by essentially biological processes, which seemed to go against the spirit of the Directive on Biotechnological Inventions (98/44/EC) which specifically excluded essentially biological processes from patentability although it did not provide for a clear exclusion of plants or animals obtained from such processes.
These decisions, which clearly conflicted with the more restrictive position taken by the US Supreme Court in relation to the patentability of biotechnological inventions, prompted the European Commission to issue a notice showing its disagreement with the EPO’s interpretation of the Directive and clarifying that it was the European legislator’s intention to exclude not only processes but also products obtained by such processes.
In view of this situation, the Administrative Council has amended Rules 27 and 28 of the European Patent Convention (EPC) which entered into force on 01.07.2017. These modifications now exclude without any ambiguity the protection of plants and animals obtained by essentially biological processes.