European Commission notice against patentability of plants does not affect European plant patents

On November 3 2016 the European Commission issued a notice regarding the patentability of plants and animals obtained by means of essentially biological processes.

In the view of the commission, the EU legislature’s intention when adopting EU Directive 98/44/EC “was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes”.

However, the commission’s notice is not legally binding; it is up to the courts and boards – not the commission – to interpret the law.

In any event, the commission has no legislative or other power over the European Patent Convention (EPC), which governs the grant of European patents – including for non-EU countries such as Norway, Switzerland and Turkey. The commission’s notice therefore has no effect on the patentability of plants or animals obtained by means of essentially biological processes under the EPC.

European patents on plants or animals obtained by such conventional breeding methods have always been and remain possible despite the commission’s notice, which also should not affect the validity of such European patents in the national courts of EPC countries.