Decision of the European Patent Office on the exclusion from patentability of plants and animals exclusively obtained by an essentially biological breeding process

In November 2016, the European Commission adopted a legal notice about the interpretation of Directive 98/44 on the legal protection of biotechnological inventions, which concluded that the intention of the EU legislator, with the adoption of this Directive was to exclude products obtained by “essentially biological processes” from being patented. This interpretation is different from the practice of the European Patent Office (EPO), which has granted an increasing number of patents on products obtained from such processes (e.g. tomato and broccoli cases).

Even if the interpretation of the European Commission was not mandatory, the EPO initiated discussion on the interpretation of the Directive and decided on 29 June to amend its implementing regulation to exclude from patentability plants and animals exclusively obtained by an essentially biological process.

IFOAM EU welcomes this decision but regrets that it is not going far enough and that it does not prevent the patentability of native traits, the only solution to protect breeders and farmers from patents on life. A coalition of NGOs will continue to analyse how the EPO grants patents to make sure its practice is conform to the new decision. 

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