Plants may be patentable in Europe even if the methods by which they are produced are not

The Enlarged Board of Appeal (EBA) of the European Patent Office finally issued its decision regarding the patentability of plants and plant material in two long-awaited cases: G2/12 (“Tomatoes II”) and G2/13 (“Broccoli II”).

Whilst the EBA had previously decided that a process for the production of plants using “essentially biological processes” is excluded under Art. 53(b) EPC (even if the process includes a step of technical nature), it was unclear whether the products resulting from such processes were themselves patentable.

Following consideration of numerous submissions from the agricultural community, the EBA decided that plants and plant materials fall outside the exclusion to patentability set out in Art. 53(b) EPC. This decision clarifies the EPO’s position on patenting of plants, making it clear that plants and plant materials may still be patentable in Europe, even if the methods by which they are produced are not. This will be welcome news for those involved in plant research wishing to protect the fruits of their labour.

For further information on this topic, or if you are considering protecting your plant-related inventions, please feel free to contact Lee Miles or your usual FB Rice attorney.