It is now official: the President of the European Patent Office (EPO), António Campinos, has done what he said he would do… in asking, once again, the EPO’s Enlarged Board of Appeal to rule on the patentability exclusion introduced into new Rule 28(2) EPC.
The questions asked by Mr. Campinos are available at this link: G3/19.
It remains to be seen whether the Enlarged Board of Appeal will agree to study these questions despite the absence of divergent decisions among the Boards of Appeal. On this point, Mr. Campinos argues for a flexible interpretation of Article 112(1)(b) EPC, as the current situation created by decision T1063/18 is, according to him, “analogous” to a situation in which the Boards have issued divergent decisions.
In the meantime, all proceedings before the Examining and Opposition Divisions of the EPO whose outcome depends entirely on these questions will be automatically stayed. Concerned parties will be duly informed on a case by case basis. Any ongoing time periods will be withdrawn. This stay applies to patents and patent applications in which the claimed subject-matter comprises a plant or an animal obtained exclusively by means of an essentially biological process. By contrast, procedures relating to patents and patent applications claiming inventions in the plant/animal field other than those referred to above will not be affected. Once the Enlarged Board of Appeal has rendered its decision, a new notification will be issued to inform parties of the resumption of proceedings.
To be continued…
