The EPC is an international treaty on the basis of which the EPO - European Patent Office grants patents valid for the member states. It is not an EU institution.

It says: "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step" (Article 52 para 1 of the EPC).

However, patents shall not be granted on "plant or animal varieties or essentially biological processes for the production of plants or animals" (Art. 53 lit. b, EPC), as well as for "discoveries" (Art. 52, EPC).

Art. 53 lit. a of the EPC secures the ethical borders of the patent right: Patents have to be in accordance with morality and "ordre public".

The jurisprudence of the European Patent Office and its Boards of Appeal interprets what these criteria mean in a particular case.

In the opinion of the initiators of this website, these exceptions to patentability would clearly prevent any patenting of plants and animals!

However, these traditional limits to patentability have been newly defined in Europe through an EU directive, which circumvents or hollows out the prohibitions to patentability as defined in the EPC (European Patent Convention). According to directive 98/44/EC patents on plants and animals, on parts of the human body and on genes are explicitly allowed. The directive not only expands existing patent law and corrodes some fundamental principles of the system of intellectual property rights. It also leads to a serious violation of essential ethical principles, violates the EPC and goes far beyond what is requested by the World Trade Organisation (WTO).

In the area of plants and animals the directive uses a legal trick to circumvent the prohibition in the EPC:

At first, Article 4.1. actually prohibits patents on plant and animal varieties, but Art.4.2 then allows all those patents, which cover more than one variety or species. This leads to the fact that patents are granted which also include whole plant and animal varieties. Furthermore Articles 8 and 9 broaden the patentability to cover all subsequent generations.

• Article 4
  • 1. The following shall not be patentable:
  • (a) plant and animal varieties;
  • (b) essentially biological processes for the production of plants or animals.
  • 2. Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety.
  • 3. Paragraph 1(b) shall be without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process.
• Article 8
  • 1. The protection conferred by a patent on a biological material possessing specific characteristics as a result of the invention shall extend to any biological material derived from that biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics.
  • 2. The protection conferred by a patent on a process that enables a biological material to be produced possessing specific characteristics as a result of the invention shall extend to biological material directly obtained through that process and to any other biological material derived from the directly obtained biological material through propagation or multiplication in an identical or divergent form and possessing those same characteristics.
• Article 9
  • The protection conferred by a patent on a product containing or consisting of genetic information shall extend to all material, save as provided in Article 5(1), in which the product is incorporated and in which the genetic information is contained and performs its function.

When patenting plants and animals no distinction is made between a technical achievement and the subsequent process of biological reproduction and further cultivation. Patent protection may, starting from patents on certain processes or gene constructs, be extended to all successive levels of reproduction. It is thus easy to by-pass the ban on patenting plant and animal varieties.

Concerning the delimitation between technological inventions and succeeding biological processes which are unpatentable there is a pioneering decision (T356/93) by the European Patent Office which, however, has been partially reversed by a judgement of the Enlarged Board of Appeal (G1/98).

The EU directive stands appart from the EPC, which is not an EU institution. However, in order to be able to apply the EU directive the EPO's Administrative Council changed the Implementing Regulations. Again, this constitutes a legal trick, as such a fundamental change should only be done through a change of the actual treaty (EPC) during a Conference of the Parties, and not merely throug the Administrative Council. The new rules also implement the Enlarged Board of Appeal's fundamental ruling G1/98 (which allowed patents on plants even before the rules had changed).

The "Rules" of the Implementing Regulations are in same key areas contradictory to the text of the convention; definitions are worded in such a way as to totally the exceptions to patentability:

• — the definition for "essentially biological" processes (e.g. breeding; not patentable) are defined as "entirely natural" [Rule 23b (5)]
• — plants and animals (not patentable Art. 53) are deemed to be patentable if the technical invention is not confined to just one particular plant or animal variety [Rule 23c (b) - which means one single variety is not patentable, but several varieties can be patentable.]

EPO Implementing Regulations

Chapter VI - Biotechnological Inventions

• Rule 23b General and definitions
• (1) For European patent applications and patents concerning biotechnological inventions, the relevant provisions of the Convention shall be applied and interpreted in accordance with the provisions of this chapter. Directive 98/44/EC of 6 July 199830 on the legal protection of biotechnological inventions shall be used as a supplementary means of interpretation.
• (4) "Plant variety" means any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:
  • (a) defined by the expression of the characteristics that results from a given genotype or combination of genotypes,
  • (b) distinguished from any other plant grouping by the expression of at least one of the said characteristics, and
  • (c) considered as a unit with regard to its suitability for being propagated unchanged.
• (5) A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.
• (6) "Microbiological process" means any process involving or performed upon or resulting in microbiological material.
• Rule 23c Patentable biotechnological inventions
• Biotechnological inventions shall also be patentable if they concern:
• (a) biological material which is isolated from its natural environment or produced by means of a technical process even if it previously occurred in nature;
• (b) plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;
• (c) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.

As of 1 March 2007 the EPC has 31 member states: Austria, Belgium, Bulgaria, Czech Republic, Cyprus, Denmark, Estonia, Germany, Greece, Finland, France, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxemburg, Monaco, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom.

The EU only comprises 27 member states. But through the Implementation Rules the EPO forces the EU directive also onto those countries which are not EU member states.