On 20 February, the European member states unanimously confirmed that the European Patent Office (EPO) should no longer be granting any more patents on plants that are the result of conventional breeding. Even though the genie appeared to be out of the bottle after earlier decisions by the EPO, the members states now appear to be putting it back in there.
In the past the EPO granted patents on the basis of the EU Biotech Directive, which regulates patent protection of biotechnological inventions. The European members states have now made it clear that this was never the intention of the directive. They are calling on the EPO to adjust its patent granting practices accordingly and to stop granting patents on products of conventional breeding.
Although the call by the member states is crystal clear, patents and patent applications relating to plants that are the result of essentially biological processes will not be abandoned immediately. That is because the European Commission does not have any legislative power when it comes to the European Patent Convention. The message is loud and clear, but it is no more than a recommendation. In other words the EPO could also opt to ignore this recommendation.
That scenario is not very likely though as the EPO indicated, in December 2016, that it would suspend the procedures surrounding the patenting of plants and animals in anticipation of the recommendation by the EU member states. It therefore very much looks as though the EPO is taking the matter very seriously and will act accordingly.
Although there are no consequences attached to this as yet, it would be naive to think that this is not going to be the case in the future. It is still unclear what kind of changes the EPO is going to implement, but there is absolutely no doubt that changes are on the cards/way.
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