Correct legal interpretation of Article 53(b), EPC, within the context of the EU patent directive 98/44

This report gives a detailed interpretation of the new Rule 28 (2) of the Implementing Regulation of the European Patent Convention adopted in 2017. 

In 2020, the Enlarged Board of Appeal (G3/19), after a request from the President of the EPO, confirmed the applicability of the new Rule 28(2). However, the effects of the change in Implementing Regulations (Rule 28(2)) were restricted to patent applications filed after 1 July 2017. The reason: the Enlarged Board of Appeal interpreted the development within the EU as a dynamic process which resulted in a new interpretation of patent law at the end of June 2017.

However, as detailed legal analysis shows, the legally binding effects of EU law regarding the interpretation of Article 53(b) that negatively affect the allowability of claims directed to plants, plant material or animals derived from essentially biological processes, are not tied to the date when Rule 28(2) came into force. In fact, the intention of the EU legislator has not changed since the EU patent directive came into force, and the EU legislator never intended to allow patents on plants and animals derived from essentially biological processes.

March 2023