EPO – Syngenta / TBA: rule 28(2) excluding plant products from patentability is void

Posted: December 7th, 2018

At oral proceedings, which took place on 5 December 2018, Technical Board of Appeal 3304  held that Rule 28(2) EPC -excluding plant products produced by essentially biological processes from patentability- is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13.

The Board referred to Article 164(2) EPC, according to which the provisions of the Convention prevail in case of conflict with the Implementing Regulations -thus rendering Rule 28(2) void- and decided to set the decision under appeal aside and to remit the case to the examining division for further prosecution.

The written decision is not yet available.
The EPO response to the decision can be read here.

One Response

  1. Active Observer says:

    It is not the first time that a Board makes clear that it does not agree with amendments to the Implementing Regulations. In G 6/95 it was even the EBA.

    It was always difficult to understand why the then President of the EPO rushed to implement not a decision of the CJEU but an opinion of the Commission.

    One can agree or not with the possibility of patenting plants as possible presently, but as long as the law is as its stands, it ought to be respected. If it has to be changed in order to take into account changes in society, why not, but then in a way which insures that our common values are respected.

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