Following our recent bulletin entitled “Essentially Biological Products? – “Broccoli II”, the EPO has now announced that all first instance cases where the decision depends entirely on the outcome of the Enlarged Board of Appeal’s decision will be stayed until the Enlarged Board of Appeal issues its decision.
The cases affected will be those currently before the Examining Division or the Opposition Division which relate to a plant obtained by an essentially biological process for the production of plants, as defined in G2/07 and G1/08. The EPO has confirmed that patents and applications relating to other plant related inventions will not be affected.
If proceedings are to be stayed the Examining Division or Opposition Division will contact the relevant parties to inform them of this. Any outstanding deadlines will be withdrawn and no further communications will be issued until the Enlarged Board of Appeal issues its decision. However, it should be noted that stays will only apply to cases where the issue of essentially biological processes is the only outstanding issue, and departments of first instance may therefore continue to consider other issues which are currently outstanding.
Amicus curiae submissions on this matter are due at the end of November, which should give an indication of the patent community’s view on this important Biotech issue.
The full text of the Notice relating to stays pending the outcome of the Enlarged Board of Appeal in relation to essentially biological processes can be found by clicking here.
For further information on the implications of this case, please contact Jennifer O’Farrell or your usual Boult Wade Tennant adviser.