The European Patent Office Board holds a rule can no longer be used to Reject Plant and Animal Breeding Inventions

December 06, 2018
Post by Patricia A. Sweeney - Of Counsel

The European Technical board of Appeal during an oral hearing December 5th decided a rule that had been used to reject plant and animal breeding claims is in conflict with a European Patent Convention (EPC) Article, with the result of reversing the impact of the rule in preventing patenting of such claims. With this decision, it is now possible to patent a product of the biological process of breeding.

In Europe, essentially biological processes for the production of plants or animals are not eligible for patenting under Article 53(b) of the EPC. However, in a 2015 decision of the EPO Enlarged Board of Appeals, referred to as the “Broccoli and tomatoes II” decision, it was held that Article 53(b) provides products of plant breeding can be patented, and should not be excluded just because the process of producing the plants is ineligible for patenting. The plants must meet other conditions of patenting, such as novelty and inventive step (not obvious), but the fact they were produced by traditional breeding does not negate patentability. Plants produced by biotechnology methods had already been determined patentable under the Article.

After this decision, groups unhappy with the outcome lobbied for a change in the rules, resulting in Rule 28(2) of the EPC by the European Patent Office Administrative Council. The rule stated European patents will not be granted to plants or animals exclusively obtained by means of an essentially biological process – traditional plant breeding. This Board decision holds that rule can no longer be effective to reject patents.

It is expected that the same groups unhappy with the first decision will take action again to reverse course. In the meantime, this decision is a positive outcome for those looking to patent plants and animals that result from traditional breeding practices.

Patricia Sweeney is an Intellectual Property Attorney in the Biotechnology & Chemical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Pat directly via email at


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