In a notice published yesterday, the President of the EPO has decided to stay any examination or opposition proceedings at the EPO where the patent application or patent in question claims a plant or animal exclusively obtained by means of an essentially biological process.  This decision has been taken to ensure that no patents are granted or maintained claiming this subject matter before the Enlarged Board of Appeal issue a decision following the President’s recent referral on this point, reported in our earlier article.

This stay of proceedings will likely prompt the Enlarged Board of Appeal to look at the referral on an expedited basis but it may still be some time before we see a decision on the merits, or even on whether the referral is admissible.  The stay will unfortunately delay the grant of patents in this increasingly economically important industry and lead to longer periods of uncertainty for third parties who may be watching pending applications filed by their competitors or seeking to revoke already granted patents owned by their competitors.

We will keep you updated with progress.  If you have any concerns about the impact of this stay, or the referral, on your business or would like advice on how to navigate the ever changing and increasingly complex exclusions from patentability at the EPO, then please get in contact with Ross Cummings or your usual contact at GJE.