Niveau juridique : Union européenne
Question en vue d’une réponse écrite de la Commission
Directive 98/44/EC affords patent protection to biotechnological inventions. As the Commission states in its Notice of 8 November 2016, it was never the intention to grant patents on natural properties obtained naturally by crossing plants. In response to this, the European Patent Office (EPO) altered its policy in Implementing Regulation 28(2) so as not to grant patents for products of essentially biological processes.
In December 2018, the Technical Board of Appeal of the EPO concluded that the policy that the EPO had recently adapted in Implementing Regulation 28(2) should not be implemented and that patents could be granted on natural properties of plants.
Does the Commission still agree that barrier-free access to plant material is essential for the innovative capacity of the European plant-breeding sector, as well as for the genetic variety of our crops?
Does the Commission agree that this decision by the Technical Board of Appeal contradicts the interpretation of Directive 98/44/EC given in the Commission Notice of 8 November 2016?
Will the Commission take steps to reconcile the interpretation of the European Patent Convention and its implementation by the EPO with Directive 98/44/EC again with regard to the exclusion of patenting of the products of essentially biological processes? If so, what steps?
Réponse de la Commission européenne
The Commission considers that the barrier-free access to plant material is key to foster innovation to the benefit of European consumers and makes the European plant breeding sector globally competitive.
The recent decision of the Technical Board of Appeal does not affect the Commission Notice of November 2016(1). From the Commission’s point of view, plants obtained by essentially biological processes are not patentable under the Biotech Directive. This means that, should the European Patent Office (EPO) decide to grant patents on plants obtained by essentially biological processes, these patents could be invalidated or referred to the Court of Justice of the European Union by national courts.
The Commission is currently exploring with Member States, the EPO and stakeholders what actions could be taken to address this situation. It also stands ready to engage in discussions on this issue with the European Parliament.
(1) www.epo.org/law-practice/case-law-appeals/recent/t181063eu1.html
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