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.
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:
Chapter VI - Biotechnological Inventions
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.