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1. A question of law has recently been
referred to the Enlarged Board of Appeal by the President of the
European Patent Office on 5 April 2019 (
Article 112(1)(b) EPC). This question seeks, in particular, to clarify whether in view of Article 164(2) EPC
the exclusion from patentability for plants and animals exclusively
obtained by means of an essentially biological process pursuant to Rule 28(2) EPC is in conformity with Article 53(b) EPC.

2. The President of the European Patent
Office has decided that, having regard to the potential impact of the
referral, all proceedings before the EPO examining and opposition
divisions in which the decision depends entirely on the outcome of the
Enlarged Board of Appeal’s decision will be stayed ex officio until the Enlarged Board of Appeal issues its decision. Search proceedings will not be affected.

3. This concerns patent applications or
patents in which the claimed subject-matter encompasses a plant or
animal exclusively obtained by means of an essentially biological
process. Patent applications or patents claiming other plant-related
inventions will not be affected.

4. If proceedings are stayed, the
responsible examining or opposition division concerned will inform the
party or parties thereof. At the same time, communications setting time
limits for the party/parties to react will be withdrawn by the examining
or opposition division, and no further communications to this effect
will be despatched. Once the Enlarged Board of Appeal has given its
decision, a further communication will be issued concerning the
resumption of proceedings.

5. The present notice is immediately applicable.

 
 
 
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