1. Questions of law have been referred to the Enlarged Board of Appeal by the President of the European Patent Office on 4 April 2019 (Article 112(1)(b) EPC). These questions seek, 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 At the same time, communications setting time limits for the party/parties to react will be withdrawn by the examining or opposition division and no further communications to this effect will be despatched.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.
Date retrieved: 19 May 2021