Journal Article

Essentially biological processes: the interpretation of the exception under Article 53(b) of the European Patent Convention

Michael A. Kock

in Journal of Intellectual Property Law & Practice

Volume 2, issue 5, pages 286-297
Published in print May 2007 | ISSN: 1747-1532
Published online May 2007 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpm028
Essentially biological processes: the interpretation of the exception under Article 53(b) of the European Patent Convention

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Legal contest

In the context of a referral to the European Patent office Enlarged board of Appeal, this article discusses potential interpretations of Article 53 (b) European Patent Convention (EPC) regarding ‘essentially biological processes for the production of plants and animals’ based in the existing case law and the legislative history.

Key points

There is a legal debate whether breeding methods which are only technical in a selection step but otherwise consist of biological steps are exempted form patentability as ‘essentially biological’. This debate is triggered by the somewhat ambiguous wording of Rule 23b(5) EPC which defines as essentially biological methods which consist entirely of natural phenomena ‘Such as crossing and selection’. This article demonstrates that Rule 23b(5) EPC needs to be interpreted to exclude only processes entirely based on natural crossing and natural selection. In consequence, processes comprising a technical step, which has an effect on the process or the result thereof, are not to be excepted.

Practical significance

Breeding processes has become technical, especially in the area of marker-assisted breeding. Not only the breeding products but also the methods present significant value. The referral to the enlarged board is of high importance for the breeding and seed industry. Deprived from patent protection, no alternative protection mean beside trade secrets would remain for breeding processes.

Keywords: ‘Essentially biological processes for the production of plants and animals’ are excluded from patentability under the European Patent Convention and under the national laws of the countries signatory to it.; Increased investment and research activity in the field of biological processes, together with the rising popularity of the patent system, combine to require an urgent re-evaluation of the precise meaning of the excluded term.; The author of this article meticulously examines the doctrinal aspects of this issue, concluding with a plea that the exclusion should be given a narrow scope

Journal Article.  10121 words. 

Subjects: Intellectual Property Law

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