ARTICLE · 24 JULY 2017

EPO Changes Rules And Lifts Stay In Biotech Cases

Elkington and Fife LLP

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Following a Notice of the European Commission related to certain parts of the EU Biotech Directive...

United KingdomIntellectual Property

Following a Notice of the European Commission related to certain parts of the EU Biotech Directive, the EPO has amended its Implementing Regulations to exclude from patentability plants and animals exclusively obtained by means of an essentially biological process. Examination of pending applications and oppositions relating to such plants and animals will now be resumed.

The Administrative Council of the EPO have enacted the rule change in order to address uncertainties and possible divergence in patent practice in this technical field across Europe, as discussed in our earlier News article.

Previous decisions of the EPO's Enlarged Board of Appeal in the "Tomato II" and "Broccoli II" cases ( G 2/12 and G 2/13) held that the exclusion of essentially biological processes for the production of plants by Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material. Therefore, such product claims

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