The Enlarged Board of Appeal (EBA) of the European Patent Office has issued an opinion on the matter G3/19 ("Pepper") considering the patentability of plant an animal products produced by essentially biological processes. Contrary to its previous view on the matter, this time the EBA has found the answer to this question to be a resounding "no".
This comes as a surprise as the EBA had previously declared void the Rule 28.2 of the European Patent Convention that states "European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process". The EBA has acknowledged their change of heart claiming that interpretation of the law is not carved in stone and may change with the times.
This change in criteria will have an immense impact on the agricultural sector. On the one hand, it hurts "agritech" companies that develop new plant varieties and use patents to monopolize their exploitation. On the other, it will favour the traditional agricultural sector, which has depended for centuries on conventional improvement methods and considers that patents hinder their activities. The EU is politically closer to the latter group, which could have been crucial to this decision. It must be noted that this way of framing the issue of agricultural innovation is not universal and other jurisdictions see it differently (like the US).
Plan variety improvements will continue being protected in the EU with another sui generis instrument: breeder's rights or plant varieties rights. This tool is a form of intellectual less stringent than patents and operates with an "open source" model, ensuring that all protected varieties are freely available to the community in their future breeding programs.
It is important to note that this new interpretation of the European Patent Convention will not have retroactive effect on European patents granted before July 1, 2017, nor on pending European applications filed before this date.
You may read the EPO press release and full decision, here.
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Adrian Esquivel Vargas
Esquivel & Martin Santos
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