Resumen de Is the Non-Patentability of “Essentially Biological Processes” Under Threat?

Sigrid Sterckx

• 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.