New rules for patents on plants

Amended Rules 27 and 28 (decision CA/D 6/17) as of 01.07.2017

link on EPO site
 

Rule 27

Biotechnological inventions shall also be patentable if they concern: 

[...] (b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety; 

Rule 28

New paragraph (2) added:

"(2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process."

Comments
The proposal to the AC is available at the website of " No Patents on Seeds"  (link - corrected link).
Some interesting points:

• Plants obtained through induced mutagenesis, e.g. with CRISPR, are patentable. The same applies for mutagenesis with irradiation or chemical mutagenesis. (point 40).
• Plant parts other than propagation material, e.g. flour, sugars or fatty acids are not excluded (point 47).
• Plant or animal cells or cell populations which are the subject of in vitro culture are patentable and are treated like microorganisms.(point 51).
• Yeast is not excluded (point 64).
• The use of a molecular marker for selection of the plants, does not provide for an escape of the exclusion (point 34). 
• The Notice of the EU Commission does not bind the CJEU. "Until a decision on the matter, if applicable, is handed down by the CJEU, the EU Commission Notice thus carries considerable weight and persuasive character"  (point 20). "The Boards of Appeal, in particular the Enlarged Board of Appeal, have jurisdiction to review the compliance of EPC Rules with the Articles of the Convention. [The] EU Biotechnology Directive is taken into account in the interpretation of the relevant EPC provisions. In this context, a possible decision of the CJEU, which under the EU Treaties is responsible for the legally binding interpretation of the EU Biotechnology Directive, can be taken into account as persuasive by the Boards of Appeal and the Enlarged Board of Appeal." (point 25). So, presumably we need first a decision by the CJEU about the meaning of Article 4(1)(b) Biotech directive, followed by a decision of the Enlarged Board.