EPO provides insights into plant patenting practices

A delegation of European Patent Office (EPO) led by Vice-President for International and Legal Affairs, Christoph Ernst, recently held two meetings with representatives of the EuroSeeds Association and of the No Patents On Seeds coalition to discuss the Office's practice in the field of plant-related inventions and the laws that govern it.

Following a rule change on 1 July 2017, the EPO has adapted its patenting practice and does not grant patents for animals, plants or plant parts obtained exclusively by means of essentially biological processes. In 2020, the EPO's highest judicial authority, the Enlarged Board of Appeal, stated that this new rule cannot have a retroactive effect for applications filed before or oppositions on patents granted before its entry into force, i.e., 1 July 2017. In line with the Board's opinion, the EPO continues to grant patents for European patent applications filed before 1 July 2017 relating to animals, plants and plant parts obtained exclusively by essentially biological processes.

For applications filed after 1 July 2017, the EPO will either refuse patents on such living matter obtained by essentially biological methods; or will ensure with a "disclaimer" that the protected subject-matter does not extend to plants obtained by essentially biological processes.

The EPO's law and practice are also in line with the EU Directive 98/44/EC on the Legal Protection of Biotechnological Inventions that was taken over into the EPC in 1999. Both the EPC and the Directive stipulate that plants produced by technical methods such as genetic engineering are patentable.

Beyond information provided to its member states and EU bodies such as the European Commission and the Community Plant Variety Office, the EPO regularly holds exchanges with stakeholder groups such as NGOs and representatives of the plant breeding sector. As an international public service organisation, the EPO is committed to an open, constructive dialogue with patent system users and to sharing information on its work with all interested parties.

Further information

Information on the patentability of biotechnology inventions

EPO CPVO cooperation

Press Communiqué concerning opinion G 3/19 of the Enlarged Board of Appeal

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)