EPO developments on patentability of biotechnology inventions

Veröffentlicht am: 13. May, 2016

Sandra Pohlmann, co-founder and partner at df-mp and Rainer Friedrich, partner at df-mp published the following chapter about developments on patentability of biotechnology inventions, focusing on the patenting of antibodies, plants and stem cells.

Patenting antibodies

There are no specific guidelines about the patentability of antibodies in Europe. The European Patent Office’s (EPO) requirements have instead evolved with the technology. Now antibodies are defined by antigen, epitope sequence and other specific parameters such as function and activity.

Patenting plants

Plant varieties have historically been excluded from patentability to avoid overlap with plant variety rights, a separate form of intellectual property applicable to new varieties of plant. Such rights still have a valuable role, but some plant innovations are increasingly of a type to which patents are better suited.

European patents will not be granted in respect of “plant or animal varieties or essentially biological processes for the production of plants or animals”. The exclusion of ‘plant or animal varieties’ applies to specific, individually claimed varieties only. If a claim encompasses multiple plant varieties but does not cover any specific variety, the exclusion does not apply.


Patenting stem cells

One effect of the directive is to prohibit patents on the use of human embryos for commercial or industrial purposes. The EPO subsequently updated the European Patent Convention to include these rules.

Embryonic stem cells are derived from early-stage embryos and the original methods for obtaining such cells involved destroying the embryo. Recent decisions of the EPO and the European Court of Justice (ECJ) have considered what is meant by the term ‘embryo’ in this context and how this prohibition should be applied in the context of downstream products and processes.

Accordingly, the EPO excludes from patentability any invention necessarily involving the use and destruction of human embryos. Applicants should ensure that at least one example of either exclusively pluripotent cells, non-human embryonic stem cells or induced pluripotent stem cells is included in their patent application.

Since you now have a small overview of some developments on patentability of biotechnology inventions, maybe you are interested in reading more details in the full article or you would like to get answers to questions about your own invention.

>> Read the full article at iam-media.com


Are you interested in patenting your (biotechnological) invention?

If you have any questions left, please do not hesitate to ask us. We will help you – promised! 🙂


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