EPO – patentability of plants obtained by essentially biological processes – T 1063/18 referred to Enlarged Board of Appeal

Posted: March 29th, 2019

Contracting States discussed next steps regarding the patentability of plants obtained by essentially biological processes – T 1063/18 referred to Enlarged Board of Appeal

During last meeting of the Administrative Council it was decided that T 1063/18 (previously discussed here on the EPLAW Patent Blog) is to be refereed to the Enlarged Board of Appeal in an attempt to end the legal uncertainty surrounding the topic of the patentability of plants exclusively obtained by essentially biological processes.

From today’s press release:

“In the 159th meeting of the Administrative Council, the representatives of the 38 EPO Contracting States together with the European Patent Office discussed the need to find a solution in the short term following the decision T 1063/18.

“The Contracting States expressed their concerns with regard to the legal uncertainty caused by decision T 1063/18. The President of the EPO expressed his view that a President’s referral of the case to the Enlarged Board of Appeal is justified and necessary. The aim is to obtain an opinion from the Enlarged Board of Appeal on the patentability of plants exclusively obtained by essentially biological processes, hereby considering recent legal developments (interpretations and statements of the European Commission, the EU Council, European Parliament and EPO’s Administrative Council on the interpretation of the European Patent Convention and the EU Bio-Directive, all of them concluding that there should be no patentability in these cases).

“The President’s proposal received broad and overwhelming support from almost all Contracting States. President António Campinos announced that the EPO will proceed swiftly to submit the referral. The EPO endeavours to restore legal certainty fully and speedily in the interest of the users of the European patent system and the general public.”

A copy of the press release can be read here.

One Response

  1. Stop messing around with the EBA says:

    The suggested referral does not change the fact that G 2/12 and G 3/12 exist, and what that the AC and the President want is for the EBA to revise its case law.

    Where is the claimed legal uncertainty? In T 1063/18, the BA has considered that the amendment of R 28, which was carried out in the wake of an opinion of the EU Commission, not even a decision of the CJEU, was against the interpretation of the EPC by the EBA in decisions G 2/12 and G 3/12.

    A referral would only be legitimate if a different BA, or even the same BA, but in a different composition, would arrive at the opposite conclusion of T 1063/18. The possibility for the President of the EPO to refer questions to the EBA should not be misused for political reasons.

    The first question to ask is whether such a referral is at all admissible. There is no change or divergent case law of the Boards. Why should the EBA say anything different from what it said before?

    The envisaged referral actually requires the Enlarged Board to disregard its own case law. If G 3/08, the referral of Mrs Brimelow about CII (to please judges in her home country), was considered not admissible, this referral is even less admissible.

    I hope that the EBA will resist this attempt to influence it, as it resisted the attempts of the predecessor of the present president in G2301/15 and G 2302/15.

    If a supplementary proof of the lack of independence of the BA was needed, here it is.

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