Over the past decade, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has changed its case law on the patentability of plants (and animals) produced by essentially biological processes according to Article 53(b) of the European Patent Convention (EPC) several times. Rather than achieving the envisioned legal certainty, the decisions have created a gap in patent protection for biotechnological inventions owing to the different interpretations of the phrase ‘essentially biological process’ and the EPO’s more recent practice of forcing applicants to expressly disclaim plants obtained by such processes from claims directed at plants obtained by technical processes. While allowing the patentability of plants in principle, Article 53(b) was originally introduced to exclude plant varieties and essentially biological processes of plant breeding from patentability to avoid an overlap with the available national, regional and international protection of plant varieties. In this way, plant breeders would have the freedom to breed and cross in the traditional biological ways without needing to worry about patent protection.
Read more: https://www.cohausz-florack.de/en/more/blog/article/patenting-plant-inventions-via-the-epo-after-g-3-19/