Q&As

What is the effect and purpose of the Press Notice of the European Patent Office of 29 June 2017 relating to plants and animals exclusively obtained by an essentially biological breeding process?

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Produced in partnership with Ashley Roughton of Ipchambers.eu
Published on LexisPSL on 09/01/2018

The following Life Sciences Q&A produced in partnership with Ashley Roughton of Ipchambers.eu provides comprehensive and up to date legal information covering:

  • What is the effect and purpose of the Press Notice of the European Patent Office of 29 June 2017 relating to plants and animals exclusively obtained by an essentially biological breeding process?

Directive 98/44/EC, the Biotechnology Directive (enacted in Schedule A2 to the Patents Act 1977 (PA 1977)) makes it clear that simply because an application for a patent involves a product consisting of or containing biological material or a process by which biological material is produced, processed or used does not mean that no patent may be granted. Also, biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature. However, PA 1977, Sch A2 sets out things which may not be patented. The list is extensive and exhaustive and states:

‘…any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological or other technical process or the product of such a process…[is not a patentable invention]’

The European Patent Office (EPO), following the literal construction of these words, proceeded to grant patents on the basis that what was prohibited was to grant patents for animal or plant varieties or any essentially biological process for the production of animals or plants. The words ‘essentially biological process’ were understood by the EPO not to include

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