Is the non-patentability of ‘essentially biological processes’ under threat?

Sigrid Sterckx

Research output: Contribution to journalArticle


Under article 53(b) of the European Patent Convention (EPC), European patents cannot be
granted for ''essentially biological processes'' for the production of plants. Unlike the
International Convention for the Protection of New Varieties of Plants, the EPC contains
no provisions which protect farmers from claims of infringement and, thus, the grant of
patents potentially constrain a farmer's normal acttions of planting and harvesting crops
using legitimately acquired seed. In practice, interpretation of the exclusion of ''essentially
biological processes'' raises a whole variety of problems, not least the question as to whether
involvement by man or machine in a process will take that process out from the relam of the
''essentially biological''. From the travaux preparatories of the EPC, and from the use of the
term ''essentially'', it is clear that involvement by man or machine is not in itself enough to
deny patentability. In this article, we develop the argument that the timing of the involvement
rather than its impact alone, is of critical importance. We also comment on two cases which
are currently under consideration by the highest instance of the European Patent Office.
Original languageEnglish
Pages (from-to)1-23
Number of pages24
JournalJournal of World Intellectual Property
Issue number1
Publication statusPublished - 2 Dec 2009


  • Europe
  • patentability
  • biological processes

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