Yesterday, on the 5th of December 2018, Arnold & Siedsma was present at the oral proceedings in an appeal case by Syngenta. In this case, it was to be decided if the patent application (EP12756468.0) by Syngenta was rightfully refused under R. 28(2) EPC. R.28(2) EPC was implemented on the 1st of July 2017, and provides that plants exclusively obtained by means of an essentially biological process are excluded from patentability. The Board of Appeal has, however, come to the conclusion that R.28(2) EPC is in conflict with Art. 53(b) EPC. In case a rule of the EPC is in conflict with an article therein, Art.164(2) EPC provides that the article prevails. The patent application by Syngenta was thus incorrectly refused under R. 28(2) EPC.
6 December 2018
Are plants exclusively obtained by means of an essentially biological process indeed excluded from patentability?