On Tuesday, the EPO issued a noticed staying all further proceedings concerning the patentability of plants and animals. This follows a referral to the Enlarged Board of Appeal by EPO president, António Campinos, on 5 April 2019.
The referral addresses whether excluding plants and animals obtained via an essentially biological process conforms with Article 53(2) of the European Patent Convention. Campinos made the referral on the basis of regulation and protocol set out by Article 164 (2) of the EPC.
Campinos noted the potential significance of the referral’s outcome. All cases before the EPO examining and opposition divisions which concern plants and animals obtained via an essentially biological process are thus on hold. Proceedings around patents, or applications for patents, concerning other plant-based material are unaffected.
Gregor König, patent attorney at König Szynka Tilmann von Renesse filed a submission as part of the ongoing Syngenta case which led to the current situation. König points out that the commission notice which initiated this whole development was triggered by the EU Parliament’s resolution (2015/2981(RSP).
“This resolution in its second recital contains a factual and fundamental error regarding the wording of Article 4 of the directive. There, it is stated “having regard to Directive 98/44/EC… in particular Article 4 thereof, which states that products obtained from essentially biological processes shall not be patentable.”
But the point, says König, is that “No such wording is found in Article 4 1.b., which is in fact identical to Art. 53 b) EPC. This may have mislead the commission from the start.”
“The president, in his reasoning, in reference to Art. 164 (2) EPC attempts to distinguish between a provision of the EPC (Article) and its interpretation. But what is “the content of a provision” without interpretation?”
“Without this distinction between provision and interpretation, however, the reasoning collapses because Art. 164 (2) EPC would provide for a prevalence of the interpreted Art. 53 b) as interpreted by the Enlarged Board of Appeal stands in the way of the new Rule 28 (2) of the Implementing Regulations.”
The question is now whether the Boards of Appeal will hear the case and when it will issue its decision.
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