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Parliamentary questions
10 April 2014
Answer given by Mr Barnier on behalf of the Commission

The European Patent Office (‘EPO’) shall grant European patents for any inventions that meet the general patentability criteria, namely novelty, inventiveness and industrial applicability. In addition, their subject-matter must also be regarded as patentable under the rules applied by the EPO’s granting practice.

In this context, the directive 98/44/EC(1) on the legal protection of biotechnological inventions (‘the Biotech Directive’) sets out specific rules applicable to this sector. Inventions meeting the general patentability criteria shall be patentable even if they concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used (Article 3). By contrast, essentially biological processes for the production of plants shall not be patentable (Article 4(b)). The relevant provisions of this directive were also included in the Implementing Regulations to the European Patent Convention, meaning that they are also binding on the EPO.

Within the EPO context, the question of the patentability of essentially biological processes was clarified by the Enlarged Board of Appeal of the EPO in G 2/07 and G 1/08, both of 9 December 2010. However, that of the patentability of products derived from such processes still awaits an answer from the Enlarged Board of Appeal of the EPO.

As concerns more generally the rules of the Biotech Directive and their application, the Commission has set up an expert group(2) looking into these matters. The Commission is currently preparing a report in the context of its reporting obligations in Article 16c of the Biotech Directive, and will draw on these contributions.

(1)The aim of this directive is to harmonise patent laws in Member States in this area.
(2)Information on the activities of the group can be found on the Register (See: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=2973&NewSearch=1&NewSearch=1).

OJ C 307, 10/09/2014
Last updated: 15 April 2014Legal notice