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Written by: Hanna Fleisher, Patent attorney assistant

Biotechnology has long been an important industry in Europe, which provides a large number of jobs, as well as socially and industrially useful developments in the field from medical and pharmaceutical processes and products to industrial and agricultural ones.

In most cases, the procedure for obtaining a European patent in the field of biotechnology does not differ from one in any other field. However, patent applications that relate to plants and animals have long been highly controversial.

Generally, debates arose due to different interpretations of certain clauses of the European Patent Convention (EPC).

According to the law requirements, a European patent cannot be granted for plant varieties and animal species, biological processes for producing plants and animals, as well as for plants or animals obtained through exclusively biological processes. However, there still was some kind of an opportunity to obtain patent protection because of a “loophole” in the law: non-patentability of biological processes for plants and animals producing was not applicable to plant and animal products derived by such biological processes (fruits, seeds and plants parts obtained by biological breeding methods, including crossbreeding and selection).

However, on May 14, 2020, Enlarged Board of Appeal, the highest judicial authority in the European Patent Office (EPO), has issued a new decision G 3/19 regarding the patenting of plants and animals. According to the decision, not only biological processes for obtaining plants and animals, but also plants, plant products / materials, and animals obtained by such biological methods are non-patentable.

Consequently, decision G 3/19 approved on May 14, 2020 covers the possibility of obtaining a European patent on the plant and animal biological products, mainly to eliminate contradictions when examining applications, and providing legal certainty in this matter.

In view of the current situation, it is advisable to consider other options for the protection of biotechnologies, apart from obtaining a European patent for an invention, such as copyright protection, obtaining ownership of a plant variety, studying national legislation and obtaining a national patent in the country of your interest, etc.

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