Enlarged Board of Appeal Issues Opinion in Referral G 3/19

On 14 May 2020, the Enlarged Board of Appeal issued its opinion regarding the referral in case G 3/19 (Pepper). Explicitly abandoning its earlier decisions in cases G 2/12 (Tomatoes II) and G 2/13 (Broccoli II), it held that plants and animal products exclusively obtained by essentially biological processes are not patentable.

The referral was made by the President of the EPO after the decision (insert link) of 5 December 2018 by Technical Board of Appeal 3.3.04 in case T-1063/18. The Technical Board of Appeal had found the new Rule 28(2) EPC, excluding plants or animals exclusively obtained by means of an essentially biological process from patentability, to contradict Art 53(b) EPC and its interpretation thereof by the Enlarged Board of Appeal in cases G 2/12 and G 2/13.

The Enlarged Board considered the referral admissible and advanced a new interpretation of Art 53(b) EPC in line with the amended Rule 28(2) EPC and related developments. It noted in this regard that a particular interpretation which has been given to a legal provision can never be taken as carved in stone. Applying a dynamic method of interpretation, having regard to the wording of the new Rule 28(2) EPC and the travaux préparatoires for that Rule, the Enlarged Board accepted that it was the EPC legislator’s intention to establish a particular interpretation of Article 53(b) EPC, which is that plants or animals exclusively obtained by means of an essentially biological process are excluded from patentability.

The epi had suggested in its amicus curiae brief to establish transitional measures to protect the legitimate expectations established by the Enlarged Board’s earlier decisions. The Enlarged Board noted that its new interpretation of Article 53(b) EPC has no retroactive effect on European patents containing such claims which were granted before 1 July 2017, when Rule 28(2) EPC entered into force, or on pending European patent applications seeking protection for such claims which were filed (or have a priority filing date) before that date.