Klassieke veredelingen van planten en dieren, zoals kruisingen, vallen niet onder het patentrecht. Dat heeft het Europees Octrooibureau besloten na juridische onduidelijkheid over het patenteren van biologisch materiaal.
The Enlarged Board of Appeal of the European Patent Office adopted a dynamic interpretation of the exception to patentability under Article 53(b) of the European Patent Convention (EPC) and held that the non-patentability of essentially biological processes for the production of plants or animals also extends to plant or animal products that are exclusively obtained by means of an essentially biological process.
In its opinion issued on May 14th the Enlarged Board of Appeal endorsed its earlier findings on the scope of Article 53(b) EPC, which were based on the classical (i.e. the grammatical, systematic, teleological and historical) methods of interpretation. However, the Enlarged Board found that a particular interpretation which has been given to a legal provision can never be taken as carved in stone, because the meaning of the provision may change or evolve over time. This meant that decisions G 2/12 and G 2/13 did not settle the meaning of Article 53(b) EPC once and for all.
In adopting this dynamic interpretation, the Enlarged Board abandoned its earlier interpretation of Article 53(b) EPC in decisions G 2/12 and G 2/13. It held that, after the introduction of new Rule 28(2) EPC, Article 53(b) EPC was to be interpreted to exclude from patentability plants, plant material or animals, if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process.
In order to ensure legal certainty the Enlarged Board ruled that the new interpretation of Article 53(b) EPC had no retroactive effect on European patents containing such claims which were granted before 1 July 2017, or on pending European patent applications filed before that date.
epo.org: Opinion G 3/19 - https://www.epo.org/law-practice/case-law-appeals/communications/2020/20200514.html