The exclusion of essentially biological processes for the production of plants in Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material such as a fruit
G 2/12 (Tomatoes II) and G 2/13 (Broccoli II) are two decisions by the Enlarged Board of Appeal of the European Patent Office (EPO), which issued on 25 March 2015. The cases were consolidated[1] and are contentwise identical.[2] The cases concern the patentability of biological products through the description of the procedure for achieving that product (a product-by-process claim). The Enlarged Board of Appeal ruled that such products were patentable and not in conflict with Article 53(b)EPC, which does not allow patents for "essentially biological" processes.
Five years later, in 2020, the Enlarged Board of Appeal overturned in G 3/19 its previous decisions G 2/12 and G 2/13. Namely, it ruled in G 3/19 that "plants and animals exclusively obtained by essentially biological processes are not patentable".[3]
Reception
The decision was viewed as a restriction of breeders' rights through patent law.
Following the decision, the European parliament adopted a non-legislative motion in which it expressed concern that the decision could spark the grant more patents on natural traits of plants introduced in new varieties and called on EU Member States (all of which are European Patent Convention parties) and the European Commission to take action.[4] The Agriculture and Fisheries discussed the case in 2015 and referred it to the Competitiveness council which discussed it in 2016.[5] The Dutch presidency of the EU held a symposium on the matter titled "Finding the Balance - Exploring solutions in the debate surrounding patents and plant breeders’ rights".[6]
References
^Minssen, Timo; Nordbert, Ana (2015). "The Impact of "Broccoli II" and "Tomatoes II" on European Patents in Conventional Breeding, GMOs, and Synthetic Biology: The Grand Finale of a Juicy Patents Tale?". Biotechnology Law Report. 34 (3): 81–98. doi:10.1089/blr.2015.29004.
^Teschemacher, Rudolf (2015). "Aktuelle Rechtsprechung der Beschwerdekammern des EPA – Notizen für die Praxis" [Current case law of the EPO Boards of Appeal - Notes for the practice]. Mitteilungen der deutschen Patentanwälte (in German) (8–9): 357–361.
G 1/07 (Treatment by surgery/MEDI-PHYSICS), G 2/08 (Dosage regime/ABBOTT RESPIRATORY), G 3/08 (Programs for computers), G 1/09 (Pending application/SONY), G 2/10 (Disclaimer/SCRIPPS), G 1/10 (Request to correct patent/FISHER-ROSEMOUNT), G 1/11 (Non-refund of further search fees/BAUER), G 1/12, G 1/13, G 2/12 and G 2/13 (Tomatoes II and Broccoli II), Art. 23 1/15, Art. 23 2/15, Art. 23 1/16, G 1/15 (Partial priority), G 2/19 (Right to be heard and correct venue for oral proceedings)
2020 – 2029
G 1/19 (Pedestrian simulation), G 1/21 (Oral proceedings by videoconference)
