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Life Sciences 2019
Artikel 1 feb 2019

IAM Life Sciences 2019: Pepper plants lead to hot decisions and patentable subject matter

On 5 December 2018 the Boards of Appeal decided that Rule 28(2) of the European Patent Convention (EPC) is in conflict with Article 53(b) of the EPC and that the article prevails over the rule under Article 164(2) of the EPC. As a result, Rule 28(2) is to be considered void and should be ignored. This means that plants (or animals) obtained via essentially biological processes are not excluded from patentability – despite Rule 28(2) explicitly saying so.

NLO's patent attorneys Bart Swinkels and Stijn van Dongen wrote an article for the 2019 edition of 'IAM Life Sciences: Key issues for senior life sciences executives'. At the time of writing (december 2018), the president of the EPO has expressed his view that a president’s referral of the case to the Enlarged Board of Appeal is justified and necessary. Whether this will lead to a decision is uncertain; the Enlarged Board considers presidential referrals inadmissible if they are not based on conflicting board decisions (see G4/98, reason 1.1), and has dismissed earlier presidential referrals even when prima facie conflicting decisions existed (see G3/08, headnote 6) because the conflict was seen as “a legitimate development of the case law”. As the Dutch say, developments in this case ‘grow as fast as cabbage’.


This article first appeared in IAM Life Sciences: Key issues for senior life sciences executives 2019, a supplement to IAM, published by Globe Business Media Group - IP Division. To view the guide in full, please go to

IAM Life Sciences: Key issues for senior life sciences executives 2019
pdf - 1.87 MB