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ARTICLE · 07 MARCH 2019

Are plants patentable in Europe?

Madderns
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The rules about the patentability in Europe of plants or plant products (obtained by a biological process) keep changing.

AustraliaIntellectual Property
Michael Dow
Michael Dow
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The rules keep changing over whether plants or plant products obtained by means of an essentially biological process are patentable in Europe.

Under Article 53(b) EPC (and Article 4 Biotech Directive), European patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants. Originally, this was interpreted to extend to plants and plant products obtained by means of an essentially biological process.

This was challenged in Broccoli/Tomatoes I ( G 0002/07 &  G 0001/08) and Broccoli/Tomatoes II ( G 0002/12 &  G 0002/13), following which, it was allowable to have a product claim directed to plants or plant material such as a fruit, even though the plant or plant material might be obtained by an essentially biological process, which is not patentable.

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