G3/19 – Patentability of products exclusively obtained by means of an essentially biological process
[26/05/2020] On 14 May 2020, the Enlarged Board of Appeal of the European Patent Office issued its decision G3/19 on the patentability of plants and animals exclusively obtained by means of an essentially biological process and, in particular, on the conflict between Article 53(b) EPC and Rule 28(2) EPC amended following decisions G2/12 and G2/13 (Broccoli/Tomato).
As a reminder, in decisions G2/12 and G2/13, the Enlarged Board of Appeal had considered, in particular, that the exclusion of essentially biological processes does not have a negative impact on the allowability of a product claim directed to plants or plant material such as fruits or plant parts.
Decision G3/19 overturns “Tomato” & “Broccoli” decisions and excludes animals and plants produced by essentially biological processes from patentability.
It should be noted that this new interpretation will not have a retroactive effect on European patents filed before 1 July 2017 (effective date of amended Rule 28(2) EPC), nor on European patent applications filed (or claiming a priority) before such date.
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