Yesterday, the Enlarged Board of Appeal (EBoA) published their Opinion on the G 3/99 referral.
The two questions asked by the EPO president were considered admissible as they fulfill the requirement of Article 112(1)(b) EPC. However, in order to give an opinion on the true objection of the referral, the EBoA has paraphrased the questions as follows:
i. With regard to the exception to patentability of “essentially biological processes for the production of plants and animals”, does Article 53(b) EPC permit only a single interpretation or could it bear a wider scope of interpretation.
ii. Does Article 53(b) EPC allow a dynamic interpretation in the sense that its meaning may change over time?
iii. And if so, can an amendment to the Implementing Regulations give effect to a change of meaning resulting from a dynamic interpretation of Article 53(b) EPC?
The EBoA still stood behind its earlier considerations in G2/12 but now also took into account all of the political developments after the implementation of Rule 28(2) EPC and further mentioned that the Contracting States clearly intended that plants, plant material or animals are to be excluded from patentability, if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process. The EBoA took the position that it can therefore be concluded that the introduction of Rule 28(2) allows and indeed calls for a dynamic interpretation of Article 53(b) EPC. The EBoA thus takes the view that the exclusion of Rule 28(2) is not incompatible with the wording of Article 53(b).
Consequently, Rule 28(2) remains enforceable, but without retroactive effect on European patents or patent applications containing claims relating to products exclusively obtained by means of an essentially biological process. In order to ensure legal certainty, Rule 28(2) EPC is thus considered not applicable on European patents containing such claims which were granted before 1 July 2017 and European patent applications having a filing/priority date before 1 July 2017. Cases that were granted or pending before introduction of Rule 28(2) EPC are thus not affected.