EPO case law: Patentability of plants: Implementing Regulations are not EPC-compliant

In decisions G 2/12 and G 2/13, the EBA of the EPO concluded that the scope of application of the term "essentially biological processes for the breeding of plants" in Art 53 lit b EPC is interpreted to the effect that product inventions where the claimed subject-matter is directed to plants or plant material such as a fruit or plant parts other than a plant variety, as such, are not excluded from being patented. According to these decisions, this also applies if the subject-matter of the invention is claimed as a product-by-process claim which states that the subject-matter of the invention is available exclusively obtained by means of an essentially biological process for breeding plants. The "clarification" of the scope of Art 53 lit b EPC introduced by the Administrative Council of the EPO in Rule 28(2) EPC in response to this decisions, according to which European patents are not granted for plants or animals obtained exclusively obtained by means of an essentially biological process, contradicts the above interpretation of the article by the EPO EBA. Since in view of Art. 164(2) EPC the provisions of the EPC prevail over the provisions of the EPC Implementing Regulations in the event of a discrepancy between the provisions of the EPC and the provisions of the EPC Implementing Regulations, the provision introduced into the Implementing Regulations by the Administrative Council is to be regarded as ineffective. Since the legal situation is clear, a new submission to the EBA of the EPO is not necessary (EPO BoA 5 December 2018, T 1063/18).