Trilateral Project 24.1-Biotechnology 217

Article 53(b) of the EPC excludes plant and animal varieties from patent protection. Until recently, the practice of the EPO was to grant generic claims directed to plants or animals, but not to allow claims directed to plant or animal varieties as such. Concerning plants, this practice was called into question by a recent decision by a Board of Appeal. Following this decision, claims directed to plants in general are not allowable if they embrace (within their scope) plant varieties.

The question whether a claim which relates to plants or animals but wherein specific plant or animal varieties are not individually claimed contravene the prohibition on patenting in Article 53(b) EPC if it embraces plant or animal varieties was then referred to the Enlarged Board of Appeal. For procedural reasons, the Enlarged Board of Appeal did however not give an answer on the question. Therefore, at present the question of the conditions of patentability of claims directed to plants and animals in general remains to be further clarified.