On May 14, 2020, the Enlarged Board of Appeals of the European Patent Organisation (EPO) has issued an opinion [click to access] about the interpretation of Art. 53(b) read with Rule 28(2) of the European Patent Convention (EPC). According to the said provision, the plant or animal varieties or essentially biological processes for the production of plants or animals are not patentable. The impugned decision now also exempts patenting of the products obtained from the essentially biological processes, as given under Art. 53(b).
Before the impugned decision, the Enlarged Board, being the highest judicial authority of EPO, had decided in cases G 2/12 (Tomato case) and G 2/13 (broccoli case) while interpreting Article 53(b) EPC, that the non‑patentability of essentially biological processes for the production of plants or animals did not extend to products that are exclusively obtained by means of an essentially biological process. [decision is accessible here]
With the current decision, the exemption on patenting of the products obtained from the essentially biological processes in EPC appears very similar to Section 3(j) of the Indian Patents Act, 1970. Precisely, in the Monsanto Case, the Indian courts had also clarified the interpretation of Section 3(j); the plants or products obtained by using essentially biological process are excluded from patentability under Section 3(j). Thus, the impugned decision of the Enlarged Board has a similar sense as Section 3(j) of the Indian patent act. However, US patents law differently looks into these provisions.
This decision is definitely a blow to the stakeholders in the agriculture industry. But it might be a step towards fulfiling the purpose of the law.