In May, the Enlarged Board of Appeal at the EPO ruled that plants and animals obtained from ‘essentially biological processes’ are not patentable, in the long-fought battle over case G 3/19. The decision upheld Article 53(b) EPC: “European patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof.”
But the decision was not met with happiness from some members of the European patent community. Legally, G 3/19 clarified the long-contested issue of the differences between plants and animals derived by breeding.
But some are concerned that the decision could affect other European agricultural companies with pending plant patents. Concern arose over suspected political motivations behind the decision of the Enlarged Board of Appeal. The European Patent Convention functions independently from the EU, but in this instance the EPO has taken steps to align its case law with the supranational body.
Fear that parallel patent legislation by the European Commission could influence the EPO, and thus the European Patent Convention, arose among the decision’s critics. However, some lawyers also acknowledge that G 3/19 highlights the adaptability and flexibility of EPO legislature.
Firstly, the Enlarged Board confirmed that the decision does not affect patents granted before 1 July 2017, or pending applications made before this date. This could be a boon for some companies waiting to file their patents at the EPO. On the other hand, the EPO is bringing its own case law into line with the standards of European courts. There could be conflicts between the EPO and various regional courts, for example if the 1 July date does not align with the patent courts. Many courts in Europe already refuse to rule on plant patents. Furthermore, patents filed to protect, for example, genetically-engineered plants may not fall under the new regulations.
It seems that G 3/19 has created more questions than it answered.