Brussels, Belgium
December 11, 2018

The great majority of EuropaBio members welcome the decision of the Board of Appeal of the European Patent Office (EPO) on case T1063/18 that declared Rule 28(2) of the Implementing Regulations to the European Patent Convention as being not applicable because it is in conflict with Article 53b) of the European Patent Convention. Rule 28(2) excludes all plants exclusively obtained by means of an essentially biological process from patentability. EuropaBio also notes that the Board of Appeal decided to remit the case to a first instance for further examination of remaining patentability requirements.

At the same time, EuropaBio remains committed to addressing the concerns of certain stakeholder groups which initially led to the introduction of Rule 28(2).

Well-balanced and solid intellectual property rights, including plant variety protection rights and patents, help drive innovation for more productive and sustainable seeds by providing an incentive to innovators to take entrepreneurial risks that benefit breeders, farmers and consumers. All innovators need a stable and predictable framework of intellectual property protection to ensure legal clarity and safeguard legal certainty for agricultural innovation in the EU.

Patent protection is the only way for legal protection to be obtained for plant-based innovation that is applicable to multiple plant varieties and crops. In the absence of patent protection for an invention obtained by means of essentially biological processes, plant breeders would be discouraged from research, development and investment to foster innovation and, therefore, there would be fewer innovative features for plant breeders to access and for farmers to use.

EuropaBio hopes that this decision will ultimately result in the legal clarity and certainty needed in this area to encourage agricultural innovation.

Background:

• On December 5, 2018, in an oral hearing in the appeal case T1063/18, the Technical Board of Appeal of the European Patent Office (EPO) held that Rule 28(2), adopted by the Administrative Council of the EPO in June 2017, was in conflict with Article 53(b) of the European Patent Convention, and thus was invalid.
• EPO statement about the decision: https://www.epo.org/law-practice/case-law-appeals/communications/2018/20181207.html
• EuropaBio’s materials and positions on intellectual property can be found here: https://www.europabio.org/cross-sector/intellectual-property

Website: http://www.epo.org

Published: December 11, 2018