Summary Note – Implementing the Commission’s Legal Notice

In November 2016, the European Commission published an Explanatory Notice on the interpretation of EU Directive 98/44/EC (“Biotech Directive”). In its conclusion, it states that:

“the Commission takes the view that the EU legislator’s intention when adopting Directive 98/44 /EC was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes.”

The Commission’s Notice followed two resolutions of the EU Parliament in 2012 and 2015. It was subsequently adopted by the EU Member States in February 2017.

According to the Notice, it is only possible to patent inventions involving the “genetic engineering” of plants and animals, such as “for instance the insertion of a gene into a genome“. Therefore, what is generally regarded as 'conventional breeding' cannot patented.