The EU Commission and the European Patent Office (EPO) are currently fighting over whether plants that are not registered varieties are patentable.
The EPO exists independently from the EU as an autonomous international organization, based on the European Patent Convention (EPC). It has its own court system, independent from other courts, e.g. the European Court of Justice.
The story goes like this:
- In 2015, The EPO granted patents to Broccoli and Tomatoes derived by breeding ("essentially biological processes") (cases G 2/12 and G 2/13)
- Some european countries, and the EU Commission renounced this decision. In Nov 2016, The EU Commission issued a "clarifying notice", a legally nonbinding statement that, according to the EU Directive 98/44/EC ("Biopatent Directive"), no patents can be granted on those kinds of plants (Scientific Service of the Bundestag (in german))
- In response to this, In July 2017, the EPO changed its own set of rules to comply to the opinion of the EU Commission. They added a new rule 28(2) to their executive orders: "Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process." CA/D 6/17
- In Feb 2019, a chamber of appeal of the EPO declared this previous decision invalid. They argued that that amendment changed the spirit of the EPC treaty, what the EPO is not allowed to do on its own, but requires a change of the EPC by the member states (Kluwer Patent Blog)
My Question is now: If the EPO has to follow the EPC and not the EU Biopatent Directive, what effect does the EU Biopatent Directive have after all?
All EU member states are also members of the EPC (as well as ten non-EU states). Therefore I see no situation in which the EU Biopatent Directive could excert any force over the EPC. One step to answering this is maybe this: The EU Biopatent Directive needs to be converted into national law, as needs every EU Directive. However, if the member states change their patent law, does this in any way affect the EPC?
EDIT: I found a passage in the European Patent Office's "Guidelines for examination", Art 5.2 referring to the EU Directive:
European Union Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions (OJ EPO 1999, 101) is to be used as a supplementary means of interpretation. In particular the recitals (abbreviated as rec.) preceding the provisions of the Directive are also to be taken into account.
