The EPO has been granting patents on plants and animals produced through conventional breeding – but now the EU Commission has advised that such patents are not legal

In the EU it has always been presumed that patents on conventionally bred varieties on plants and animals were not legal. However, the European Patent Office has decided to ignore that in a number of cases in the last few years, and has granted patents on the products of conventional breeding.

Now, thanks in part to the good work of NGOs such as No Patents on Seeds, it seems that the law will finally be upheld in the EU.

The European Patent Office has announced (see below) that it has “decided to stay all proceedings in examination and opposition cases in which the invention is a plant or animal obtained by an essentially biological process”.

To “stay proceedings" means to refrain from granting any new patents while the EU member states decide how they interpret EU legislation. This will include defining "essentially biological”. In order to protect plants and animals from being patented, the member states will need to define this term as broadly as possible.
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EPO stays proceedings in certain biotechnology cases

European Patent Office (EPO), 12 December 2016
http://www.epo.org/news-issues/news/2016/20161212.html

The European Patent Office has decided to stay all proceedings in examination and opposition cases in which the invention is a plant or animal obtained by an essentially biological process.

The decision was taken following the discussion by EPO member states in the Patent Law Committee of the Administrative Council on the recent Notice of the European Commission related to certain articles in the EU Biopatent Directive (98/44/EC).

Amongst other things, the Commission's Notice, published on 3 November, considers that according to the EU legislator, plants and animals derived from essentially biological processes should not be considered patentable.

In its practice the EPO applies the Biopatent Directive, which was introduced into the European Patent Convention by decision of the EPO member states in 1999 and which has no explicit provision in relation with plants or animals obtained from such processes. Should the EPO member states follow the interpretation offered by the European Commission Notice, the EPO will implement their decision.

Further information

Notice from the European Patent Office dated 24 November 2016
http://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20161212.html

Notice of the European Commission (3 November 2016)
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:JOC_2016_411_R_0003&from=EN

EU Biopatent Directive (Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions)

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:31998L0044